Elijah Ukoh Vs The State (1972)

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COKER, JSC.

We dismissed this appeal at the hearing on the 11th January, 1972 and now give our reasons for doing so. The appellant was charged before the High Court, Ado-Ekiti (Western State) with the murder of one Kalu Adule. He was tried by Craig, J., convicted as charged and sentenced to death. He appealed to the Western State Court of Appeal and on the 20th April, 1971, his appeal was dismissed by that court. The appellant was a friend of Kalu Adule, now deceased, and both of them lived in a room in the house of one Peter Ajayi who was called as the 4th prosecution witness to testify at his trial. He lived in another section of the same house and in the course of his evidence before the court that heard the case, he stated as follows:-

“At about 2.00 a.m. on 28/10/68, I heard the loud sound of something crashing. I was in my room and the sound came from another part of the floor. It was a bungalow. I then shouted on one Sule Otubu. He too was a tenant. Sule answered me from his room and we two met in the parlour. Both Sule and I carried a lantern each. I saw the door of Adule’s room was open. I went inside. Sule was with me. I saw Kalu Adule on the floor in a pool of blood. He was dead.”

The witness further testified that he examined the corpse of Kalu Adule and found “a matchet cut on his neck”. Indeed, Dr. Kantilal Kapadia who later performed a post-mortem examination on that corpse confirmed the presence of “a very large wound on the right side of the neck about five inches long and two inches wide in the middle”. The doctor thought the wound could have been inflicted with a sharp instrument such as a cutlass and that in his opinion the death of Kalu Adule was caused by that wound.

In the course of his evidence, the 4th prosecution witness, that is Peter Ajayi, the landlord of both the appellant and Kalu Adule, was cross-examined by learned counsel for the appellant as to how he knew that it was the appellant who had killed Kalu Adule. He answered as follows:-

“I knew that the accused killed the deceased because:

(1) I saw blood stains on the buba which the accused was wearing. I noticed this when I saw the accused surrounded by many persons, secondly, the accused fled from the house that night. Thirdly the accused confessed that he killed the deceased. He told me this in the Land Rover when Police were bringing us to Ado-Ekiti.”

One of the neighbours of the appellant was also called by the prosecution as a witness. He was Sule Otubu (5th prosecution witness). He had been aroused from sleep by the landlord, Peter Ajayi, at about 12.30 a.m. Following the noise of the crash described by that witness. He had rushed as well to the room occupied by Kalu Adule and found him lying on the floor with a deep gash in his neck inside a pool of blood clotted here and there. He stated that at this stage of things the appellant, who was known to have slept in the same apartment with Kalu Adule the previous night, was nowhere to be found. A search was mounted for him and at about 9 a.m. on the 28th October, 1968, he suddenly appeared coming back into the house as if he knew nothing about all that has happened. He was then arrested and eventually handed over to the Police.

After his arrest, the appellant made a statement to the police and this was admitted in evidence as Exhibit 1. In it he stated that there was an argument between him and the late Kalu Adule; that the argument developed into a fight and that both of them fought it out until he got out his own penknife and used it on Kalu Adule. He also stated that as a result of this, Kalu Adule fell down and never got up again. In his evidence in court in his defence he stated that he had slept in his farm on the 27th October, 1968 and that on his return home on the 28th October, he saw many people in front of the room of Kalu Adule speaking in a local language which he did not understand. He stated that he was then taken inside the room by a policeman and others and there he saw the lifeless body of Kalu Adule. He was then taken to the Police Station where he made a statement to the police but certainly not in the terms of Exhibit 1 because he did not at any time confess to having killed Kalu Adule.

The learned trial judge extensively reviewed the evidence and expressed his considered findings as follows:-

“On the careful consideration of all the evidence, I am satisfied on the facts that:-

(1) The accused slept in the parlour of the house of Peter Ajayi on the night of the 27th October, 1968.

(2) Sometime during the night, the accused murdered the deceased Kalu Adule, and ran away from the house.

(3) That when he was apprehended, he confessed to the 2nd prosecution witness in the house and to the 4th prosecution witness in the Police vehicl that he killed the deceased.