James Obi Achabua V. The State (1976)

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OBASEKI, AG. J.S.C.

We dismissed this appeal on the 9th day of December, 1976 and now, as notified by us, give our reasons.

The appellant was in Charge No. HJ/13C/74 tried for the offence of murder contrary to section 319 of the Criminal Code by the High Court of South Eastern State (now Cross River State) presided over by Ntia, J. found guilty and convicted on the 5th day of May, 1975.

The particulars of the offence given in the charge reads:

“James Obi Achabua and Peter Nkpe between the 3rd day of April, 1973 and 21st day of April, 1973 at Bajanfue Beebo Ikom in Ogoja Judicial Division did murder Christopher Egada”.

Five witnesses were called by the prosecution while two testified for the defence and briefly the facts established by evidence before the learned trial judge are as follows:

Christopher Egada was a house servant to the appellant at Bajanfue village and had lived with him for about 2 years prior to his death. On or about 1st day of April, 1973, the Bajanfue village community including the appellant went fishing in the fishing pond when at about 7 p.m. information was brought to the appellant by his wife that the deceased had disappeared from the house with the appellant’s money, N99.00. The appellant then abandoned the fishing and traced the deceased to Obudu where he succeeded in recovering N90.00 out of the said amount from him and persuaded him to return. According to Exhibit 1, the 1st statement of the accused (in which he denied any knowledge of the whereabout of the deceased and disclaimed any knowledge of the death of the deceased) as they were returning the deceased pleaded for forgiveness. He offered to transfer his father’s land to the appellant to cover up the balance. In the alternative, he also offered to work for appellant to cover up the N9.00 balance. The appellant’s reply is better reproduced from his statement Exhibit 1 on 14th April, 1973 which reads:

“The boy himself na him tell me say make me I no take am for police if land him go go show me him papa land for the remaining N9.00 or make me I go give am some work where him go do for me to cover the N9.00 that very day where I catch am for Obudu.

I bring am for my house. As we been dey come from Obudu, me and him Christopher night meet us for road and I tell am say o.k. as you say if na land I want you go give me, or if na work you go work for the balance N9.00, me and you go go see councilor if day break. So for night now him go sleep for the room wey I give am and when day break I no see am again. As I no see am when day break I go for councillor go tell am for the matter”.

Following a report to the police about the sudden disappearance of the deceased, the police organised a search into the village bush area. Accompanied by the appellant, Patrick Unya (PW1), James Mbuta (PW2), Jack Onya (PW3) who was Councillor in the village, and Gabriel Kekwa (PW6), two police officers namely, Cyprian Ajime P.C. No. 25751 (PW4) and Corporal No. 2015 Omini Ebri (PW5) conducted a search of the bush area and discovered a newly dug grave (referred to as a fresh grave) concealed by leaves. On the instructions of the policemen, PW4 and PW5, the appellant started to remove the leaves but frightened suddenly he took to his heels exclaiming “I don die” as he ran. He was chased and brought back by PW4 and others and restrained to prevent his escape. When he was asked why he ran he explained to the hearing of all in the search party that that was where he killed and buried the deceased.

On this point of explanation, the evidence of PW3 reads:

“He answered that because of this boy who stole my money na him make I kill am”

and the evidence of PW4 reads that:

“He said because we had seen where he killed and buried the deceased Christopher Egada”.