Bassey Akpan Iden V. The State (1994)

LawGlobal-Hub Lead Judgment Report

NIKI TOBI, J.C.A. 

 In the High Court of Abak in the Abak Judicial Division, the appellant was charged with attempted murder of Friday Ezekiel Udo Idiong by giving him multiple gun-shot wounds on 7th May, 1981 at Nkum village. Five witnesses gave evidence for the prosecution. The victim of the gun shot gave evidence as P.W.2.

The case of the prosecution is as follows: P.W.1 had a farm. The farm was in close proximity with the Church. It is the Christ Faith Church. P.W.2 was in the Church fasting with other members of the Church. He also conducted the prayers. That was on 7th May, 1981. In the course of the prayers, P.W.2 went out to ease himself. He saw the appellant and eight others who moved to the farm of P.W.1, P.W.1 had left for the bicycle repair’s shop to repair his bicycle. He returned not long after. P.W.2 told him that some people were in his farm. P.W.2 mentioned the names of those he knew. Both P.W.1 and P.W.2 went to the farm. P.W.2 was requested by P.W.I to accompany him.
On reaching the farm, they saw the appellant holding a bottle of ‘Mbiam’ (a juju) and poured it on the farm. He also uttered some incantations urging the ‘Mbiam’ to harm any person who would harvest any crop or crops in the farm. When confronted by P.W.1, the appellant replied that Noah Ntia summoned P.W.1 to his ‘Mbiam’ but he failed to appear. P.W.1 held the appellant to take the bottle of the’ Mbiam’ from him. There was a scuffle. Those who accompanied the appellant came to his aid. They threw P.W.1 on the ground. He was also beaten.
Appellant held P.W.1 by the neck. P.W.2 came to the rescue of P.W.1. He tried to separate the two – P.W.1 and the appellant. As P.W.2 held the hand of the appellant from the neck of P.W.1, the appellant used his right hand to remove a pistol from his pocket and shot P.W.2 on his left thigh. P.W.2 fell down and became unconscious. He became conscious at the General Hospital, Ikot Ekpene. P.W.2 was transferred from the General Hospital Ikot Ekpene to another Hospital in Calabar for treatment.

The defence told a different story. It is usually so. The prosecution and the defence usually do not see eye to eye. They are in opposing camps. The appellant did not behave differently. The following is his evidence. On 7th May, 1981 Noah Antia and D.W.2 called on the appellant in his house at Ito, Ika, in Abak Local Government Area. They asked the appellant to sell his juju (Mbiam) to them for oath taking in their village. Noah Antia and D.W.2 took the ‘Mbiam’ to their village. Appellant said he followed them. On reaching the farm, they were confronted by P.W.1. He challenged them for bringing the juju to the farm. This resulted in a struggle between P.W.1 and his supporters on the one hand, and Noah Antia and his supporters on the other. There was a fight. In the course of the fight, D.W.2 took the juju from his father, Noah Antia, and ran away. Appellant said he also ran away, leaving his bicycle which he kept in the house of Noah Antia. He said that he did not take the bicycle to the farm. Appellant denied carrying a gun to the farm. He also denied shooting P.W.2. Under cross-examination, appellant said:

“I did not shoot 2 P.W. and 1 P.W. is my in law because the elder brother of 1 P.W. married the first daughter of my mother. I did not run away because I fired 2.P.W. with a gun. I did not fire him with a gun”.

The learned trial Judge did not believe the evidence of the defence. He therefore convicted the appellant. Usoro, J., in concluding his judgment, said:

“On the whole, from the evidence before the court, I am fully satisfied that the prosecution had proved its case beyond all reasonable doubt against the accused. I therefore find the accused guilty as charged on the information and I convict him accordingly… The accused is hereby sentenced to seven (7) years I.H.L.”

Dissatisfied, the appellant filed an appeal. Briefs were also filed and exchanged.
Counsel for the appellant formulated the following three issues for determination:

“(1) Whether the prosecution proved all the ingredients essential for the conviction of the appellant for the charge of attempted murder.

(2) Whether the learned trial Judge in convicting the appellant of attempted murder had directed his mind to the question, whether or not there was intent to kill, and not merely to do grievous bodily harm.

(3) Whether the sentence was excessive”.

Counsel for the respondent also formulated three issues for determination. They read:

“(1) Whether the prosecution proved all the ingredients essential for tile conviction of the appellant for the charge of attempted murder.

(2) Whether the learned trial Judge in convicting the appellant of attempted murder had directed his mind to the question, whether or not there was an intent to kill and not merely to do grievous bodily harm.