Igboji Abieke & Anor Vs The State (1975)

LawGlobal-Hub Lead Judgment Report

ALEXANDER, C.J.N. 

The appellants were the accused in Charge No. AB/51C/73. They were tried in the High Court of the East – Central State sitting at Abakaliki for the murder of Echem Otagbara and were convicted and sentenced to death on 17th December, 1973. On 2nd October, 1975, we allowed the appeal, set aside the convictions and sentences of the appellants and ordered that they be acquitted and discharged. We now give our reasons for allowing their appeals.

The learned trial Judge said in his judgment that “the whole case against the accused persons was founded on circumstantial evidence which counsel submitted was not cogent enough.” He also pointed out “that there is no evidence to the effect that the accused persons actually killed the deceased.” Indeed, at the hearing of the appeal, learned counsel for the appellants, Mr. F.O. Akinrele, in a few brief submissions based on his ground of appeal clearly demonstrated that the evidence at the trial did not lead irresistibly to the guilt of either of the accused persons and that the judgment could not therefore be supported having regard to the evidence. In the circumstances, learned counsel for the respondent ultimately conceded that all the evidence available was the “absence” of the deceased and the contradictory statements of the appellants, and that there was no direct evidence of a killing. He accordingly found himself unable to support the conviction and rightly so.

The facts as testified by the prosecution witnesses and accepted by the trial Judge himself are as follows. The two appellants and the deceased Echem Otagbara lived at different places at Amagu village. On or about the 2nd September, 1972, the 1st appellant called in the night to see Echem and Echem’s step mother, Alobu Otagbara (P.W. 2) told the 1st appellant that Echem had gone to bed. The 1st appellant then left.

In the morning, she went to the place where Echem was supposed to have slept but did not see him. On her way to he stream to fetch water, she saw the 1st appellant and asked him about Echem,. The 1st appellant said that Echem was in his brother’s house. She mentioned that she had been there but did not see Echem and the 1st appellant replied that he too had been looking for Echem unsuccessfully. Alobu reported the matter to her husband (Echem’s father) who sent for the 1st appellant. The 1st appellant denied any knowledge of the whereabouts of Echem. He persisted in his denial until the sixth day afterwards, when he admitted knowing what had happened to Echem.

The 1st appellant then gave the following account of the circumstances of the disappearance of Echem. He said that he had travelled with Echem in a canoe carrying a cow which was to be sold and that the canoe capsized and that Echem, the cow and the canoe got lost in the river. The 1st appellant said that they had bought the cow for resale. Echem’s father summoned the villagers and the 1st appellant confirmed that Echem had drowned in the river. They all went to the river to search, but Echem’s body was not recovered. The testimony of Alobu Otagbara was corroborated by Echem’s father, Otagbara Egbe (P.W. 3) in material respects.

It is clear that the 1st appellant prevaricated concerning the whereabouts of Echem before coming out with his own account of the circumstances in his statement to the Police and also in his sworn testimony at the trial. However, the learned trial Judge disbelieved the evidence of both appellants and of course, the accounts they gave in their statements to the Police and also in their sworn testimony as regards the circumstances in which Echem lost his life.

In his statement to the Police, the 1st appellant said:-

“We put the cow inside the canoe and we entered into the canoe. As we reached the middle of the river the cow started to struggle and later sank the canoe. Three of us started to swim. After I had come out from the river together with Orogwu, the canoe-man, we did not see Echem Otagbara. We did not see the cow and the canoe.”

In his sworn testimony he said

“At the centre of the river the boat capsized after we had gone two miles, Echem, the 2nd accused, and myself started swimming. I did not see the 2nd accused nor Echem as I was swimming, I came out myself looked for Echem and the 2nd accused and did not see either of them.”

………

“I then went to Echem’s father (P.W. 3) the same day. There I told (P.W. 3) that the cow we went to sell capsized our boat and I did not see Echem.”

The 2nd appellant said in his statement to the Police –