Asquo William V. The State (1975)

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NASIR, J.S.C. 

In Charge No. HU/36/1973 the appellant was convicted, in the High Court sitting at Umuahia by Aniagolu J., on 13th January, 1975 of the offence of murder contrary to Section 319 (1) of the Criminal Code.  On the 13th November, 1975 we heard this appeal. We allowed the appeal and discharged and acquitted the appellant.  We said that we would give our reasons later.  We now state out those reasons.

The appellant together with five other persons were arraigned in an information preferred under Section 340 (2) (b) of the Criminal Procedure Law charging them with the murder of one Sunday Nnana.

The case for the prosecution was that on the 2nd day of February, 1972 the deceased and his wife, Oyidie Sunday Nnana, Udo Umo and Ogbonnaya Obasi went to their farms at Nturi in Okpakon bush to cut Okro.  While working on the farm the deceased’s wife, Oyidie, heard the voices of people approaching the farm speaking Ibibio. She alerted her husband. When those people arrived they went to the side of the farm where the deceased was and started to pluck his okro. The deceased asked them why they were plucking his okro but they told him to shut up.  

The deceased asked again but he was again told to shut up. They then came and surrounded him. There were six of them, namely Asuquo William (1st accused), Edet Udo Ekpeyong, (2nd Accused), Akpan Bassey (3rd Accused), Ndarake Ekpenyong (4th Accused), Joshua Essien Nkpo (5th Accused) and Isang Usong (6th Accused). The 4th Accused, Ndarake Ekpeyong urged the 1st Accused to kill the deceased and as a result the 1st accused gave the deceased a matchet cut on the right side of his stomach. The deceased lunged forward and fell down with his intestines gushing out. The deceased was shouting “What have I done! What have I done!” One of the neighbours, Udo Umo, heard this and shouted to find out what happened to the deceased. When the accused persons heard the voice of Udo Umo they ran towards him but he himself started to run away and escaped with serious matchet wounds on his head, inflicted by the accused persons.

At this juncture Oyidie ran back to the village and raised alarm. The villagers then went to the farm and from there collected the dead body of the deceased and the body was subsequently taken to the Arochukwu hospital and a post mortem examination was performed. Udo Umo was also taken to the same hospital for treatment.

The first, second and third prosecution witnesses testified that all the six accused persons were on the farm on that day. The accused persons gave evidence on oath at the trial. The 3rd to the 6th accused denied being at the farm on the day in question. The 2nd accused while admitting being on the farm on the day in question denied being there at the material time and said that when he saw the deceased in an aggressive mood he got frightened and ran away and did not know what happened later. The 1st accused admitted being on the farm but alleged that he was the one surrounded by the deceased and other persons and denied killing the deceased.

The 1st P.W. made two statements to the police. These statements were put in evidence (Exhibits 1 and 22).  The statement to the police of the 3rd P.W. was also put in evidence (Exhibit 2). Likewise all the statements made to the Police by the accused persons were also put in evidence. We shall refer to some of these statements later.  The nature of the evidence adduced by the prosecution was that the learned trial Judge rightly acquitted five of the accused persons at the end of the trial and only convicted the appellant. He should have, in our view, acquitted even the appellant because of the unsatisfactory nature of the evidence in this case.
Only two grounds of appeal were argued by learned counsel for the appellant, namely:-

“(1) The learned trial Judge misdirected himself on the facts when he said “In that statement she said it was ‘Udo Ekpeyong’ who ordered the 1st accused to cut the deceased” whereas it was not so stated in the statement and then came to a wrong decision as to the evaluation of the evidence for conviction.

(2) That the judgment is unreasonable, unwarranted and cannot be supported having regard to the evidence.”

These two grounds were argued together. The points made by counsel are considered in this judgment. Suffice to note here that learned Principal State Counsel after further consideration of the arguments adduced and the wrong findings on which the learned trial Judge based his conviction, he indicated that he would not be pursuing his earlier suggestion that a verdict of manslaughter should be substituted.

We would consider the evidence in this case. The learned trial Judge said in respect of the prosecution witnesses:-

“Having seen and heard Oyidie Sunday Nnana (P.W.1), Udo Umo (P.W.2) and Ogbonnaya Obasi (P.W.3) and the 1st and 2nd accused persons, the Court, without any shadow of doubt, is satisfied that the version given by the prosecution witnesses on this issue is the true and correct one.  The Court is satisfied that it was the 1st accused who in the company of some Ibibios attacked the deceased who was harvesting his Okro crops from his farm.’

The learned Judge went on to disbelieve everything said by the Appellant and continued:-