The Queen V. Effiong Okon Eyo (1962) LLJR-SC

The Queen V. Effiong Okon Eyo (1962)

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TAYLOR JSC

The appellants were four of the six accused persons who stood trial at the Assizes held at Uyo in the Calabar Judicial Division on the following eight counts:-

Count 1:with Riot contrary to S.71 of the Criminal Code. Counts 2, 3, and 4:with attempt to murder contrary to S.320(1) of the Criminal Code.

Counts 5 and 6: with doing grievous harm contrary to 5.335 of the Criminal Code.

Count 7: with doing an act intended to cause grievous harm contrary to S.332(1) of the Criminal Code.

Count 8:with serious assault contrary to S. 356(2) of the Criminal Code. The four appellants were found guilty on all the counts and sentenced to various terms of imprisonment to run concurrently with one another, whilst the other two accused were found not guilty and discharged.

The facts of the case, put as shortly as possible, were as follows:

On the 9th November, 1961, the Premier of the Eastern Region, a member of the political party known as the N.C.N.C., was due to hold a rally at St. Peter’s School compound, which abuts the Mbierebe Akpawa Road, in Uyo, Calabar, Eastern Region. The first appellant, a member of the opposition, the political party known as the Action Group, has an uncompleted building a few yards off this main road. Before the Premier was due to pass, a police patrol was patrolling this road, and the first appellant with the second appellant and many others were seen in the formers compound armed with various weapons, including guns, matchets, bows and arrows and were seen drinking and singing. Amongst them, too, were women carrying bottles and palm leaves. The first appellant was requested by one of the police Officers on patrol, prosecution witness 4, to disperse the crowd and replied that the law allows him to defend his property. Shortly after further Police detachments arrived, numbering about 175 in all, and the Premier and his campaign (election) team followed in the wake. Various efforts were made by the Police to disperse the crowd, which had obstructed the road with drums and palm branches, but in vain. According to this same witness, when he asked the first appellant to withdraw his man, he refused to do so and said that he would not allow the Police and the Premier’s team to pass. The second appellant was also particularly conspicuous in a uniform, and had been described by the first appellant as the person in charge of operations. The crowd with the first appellant numbered about 500 persons. At a certain stage, the Police baton party was ordered to make an arrest, and the third and fourth appellants were arrested before the firing started. When the Police endeavoured to disperse the crowd with tear gas, they opened fire on the police, resulting in several policemen being injured. The police then opened fire and killed one of the crowd, which had the effect of dispersing the crowd. The first appellant was seen to fire at the Police from the window of his uncompleted house.

The defence set up by the second to fourth appellants was a complete denial of being present at the scene, whilst the first appellant denied organizing the crowd in defence of his property and, further, that although he saw a crowd of women who had volunteered to defend his property, he was not at the scene when the disorder broke out, having left when advised so to do by one of the Police officers.

Chief Moore, Q.C., argued with leave, two additional grounds of appeal with those already contained in the record. They read as follows:-

(1)The learned trial Judge erred in law in failing to consider at all or sufficiently the defence of the appellants’ “Defence of Property”, after finding the pleas of Alibi not established.

(2)The Learned Trial Judge erred in law in treating the statements made by the second, third and fourth appellants as evidence given by the three appellants, in that the statement failed to com-ply with the Rules of Evidence requiring evidence by accused persons to be oral evidence.

There is no substance in either of these two grounds, and suffice it to say on the first that apart from the fact that none of the appellants, in their evidence in Court or in their statement to the Police, set up this defence, the learned trial Judge in our view gave this defence a most careful consideration and rejected it. In one portion of the judgment the trial Judge says this:-

Assuming that the first accused was defending his property (which he denied) one would have expected him to station his armed men around his house and oil mill to guard them, and not to block the road. The first accused was asked to order the crowd to surround his premises and oil mill if he in fact wanted to defend them, but he refused. What acts were done by the accused on the day in question to show he was defending his property? None (in view of his denial). If this defence does not avail the first appellant it stands to reason that the property in question being his, it cannot avail the others, more so in view of the statement of the first appellant that he did not engage anyone to defend his property.

On the second additional ground of appeal we did not call on Mr. Onyiuke, Q.C.., for the respondent to reply. The facts relating to this ground were as follows: After the case for the prosecution was closed and the first appellant had given evidence in the court below, the other accused persons, including the second, third and fourth appellants before us, were sworn in turn, and, after stating where they lived, what work they did and when they were arrested, they went on to state that they made statements to the Police and they adopted such statements in their defence. Their examinations-in-chief then closed and they were cross-examined by Counsel for the Crown. Chief Moore contends that accused persons being required to give oral evidence by virtue of s. 179 of the Evidence Act, their failure to do so went to the root of their trial and rendered the proceedings as far as they were concerned incomplete. The section of the Act referred to states as follows:-

Save as otherwise provided in Sections 181 and 182 all oral evidence in any proceedings must be given upon oath or affirmation administered in accordance with the provisions of the Oaths and Affirmations Act.

The appellants in this appeal did give oral evidence, albeit short, and, upon oath; as for that part of their evidence adopting their statements made to the Police, the case of Rex v. Augustine Ume and Ors. 8 W. A.C.A. 123 at 126 is pertinent where the Court held that-

All the accused, on being called on for their defence elected to give evidence on oath. Upon the first and second accused going into the witness box in turn and being sworn each had his statements (Exhibits C and D respectively) put to him, and each swore that it was correct, and that he wanted to adopt it as his evidence on oath and had nothing to add. The statements thereupon took on the nature of sworn evidence in the case and became evidence against the third accused. But the questions by which they were put to the two witnesses were of the most flagrantly improper and leading nature. When a person is tried singly or when his statement in no way implicates or prejudices a co-accused it may be permissible to take his evidence in this way, but when the statement implicates a co-accused then the procedure of putting it in en bloc by a leading question cuts at the very root of the principle upon which evidence against an accused is to be given…

There has been no suggestion, and indeed there could be none, that the statements of any of the appellants here implicated the other for they all denied their presence at the scene of the crime. On this authority the statement of each appellant when adopted in evidence took on the nature of sworn evidence, within the provisions of s.179 of the Evidence Act. The case of R. v Alli Bello, 12 W.A.C.A. 432 was another case similar in point to Rex v. Ume. Sir John Verity, C.J., made strong comments on this method of examining witnesses which deprives the Trial Court of the advantage of seeing the demeanour of the witness in examination-in-chief and at the same time puts the witness at the disadvantage of having his demeanour assessed for the first time by the Trial Judge while under cross-examination. While we deprecate the method adopted by Counsel in presenting the evidence for the defence in this manner, we cannot see in what way the learned trial Judge could have, in keeping with his role as an arbiter, interfered with the defence. These two grounds of appeal fail and are dismissed.

Chief Moore then went on to deal with the second original ground of appeal, which reads thus:-

The learned trial Judge erred in law in convicting this appellant on counts 2, 3, 4 and 7 when it was not alleged or established by the prosecution that the commission of the offences charged on the said counts are probable consequences of the alleged common purpose of the crowd.This ground, incidentally, is the third ground in the grounds of appeal of third and fourth appellants, but the second ground in the appeal of the first and second appellants. Learned Counsel for the appellants submitted that an intent to murder must be proved by the Crown and submitted that it was wrong for the trial Judge in the consideration of this to hold that:-

In determining the intentions of the crowd the type of weapons used has to be taken into consideration.In fairness to the learned trial Judge, he did a little later on in his judgment give the proper direction, and said that:

The point is whether the crowd had an intent to murder. The charge is for attempted murder and the essence of this is the intent to kill ……… An actual intent to kill must be proved as this is the principal ingredient of the crime of attempted murder.”

Chief Moore further attacked that part of the judgment dealing with the same question of intent, which reads that:–

A gun is a deadly weapon and anyone who fires it at a group of people must intend to kill someone.

Mr. Onyiuke for the Crown, rightly in our view, did not seek to support the reasons given by the learned trial Judge in holding that an intent to kill had been established by the Crown on Counts 2, 3 and 4 but went to argue that the offence on the 7th Count was amply proved by the Crown.Chief Moore drew our attention to the case of Reg. v. Grimwood, (1962) 3 W.L.R. 747 and 749. In that case Reg. v. Whybrow, 35 C.A.R. 141, referred to by the trial Judge , was considered and the law as stated by Lord Goddard. C.J., was followed. At page 751 of this report Lord Parker, C.J., disapproving of the summing up of the trial Judge in the case on appeal before the court of Criminal Appeal, said this:-

One further matter should be mentioned, and that is that certainly in regard to the first passage I have quoted in the summing up it might well have led the Jury to suppose that even if they were satisfied that all the appellant intended to do was to cause grievous bodily harm, yet if death might well result from such grievous bodily harm an intent to murder had been present. That again, if that impression was conveyed, was quite clearly a wrong direction.

There was nothing in the record of appeal before us to show that the appellants had a common intent to kill, beyond the fact that some members of the crowd were armed with lethal weapons, and that they intended to use force against anyone who attempted to cross the road in question . As against the existence of an intent to kill is the absence of any evidence as to the distance at which the mob fired at the Police. While we note that a shotgun will kill within its range, one must also bear in mind that out of range it can be a wholly harmless weapon. The same comment would apply to the other weapons found with the mob. There was, however, evidence that the first appellant fired at the police from the window of the first floor of his building when the police were roughly 75 yards away. In the absence of evidence as to whether a shotgun of the type used by the first appellant could kill at such a range the Court would not be justified in drawing an inference that the nature of the weapons carried by the mob itself showed an intent to kill. In our view the evidence adduced is insufficient in law to sustain the charge on Counts, 2 3 and 4, for there must be an intent to kill; for these reasons the appeal of the appellants succeeds on these counts. The verdict of guilty and the sentences passed on the appellants are hereby set aside and a verdict of Not Guilty is entered. The appellants are acquitted and discharged on counts 2, 3 and 4.

As to Count 7, however, different considerations apply. The appellants were convicted of unlawfully wounding Ambrose Iwoke, by shooting at him with a loaded gun with intent to do grevieous harm. That Ambrose Iwoke was unlawfully wounded by gun shot was not contested, and this fact was amply proved by the evidence adduced by the Crown. As to the nature of his wound, the third prosecution witness, Jacob Igwe, a medical practitioner, says this:-

On examination of Iwoke I discovered he had a gun-shot wound in the middle of his left middle finger. He had other gunshot wound on the left thigh about 3 ”above the knee …Iwoke’s wound was serious. He had compound fractures. if he did not have adequate treatment he would have had blood infection.

The stage at which he received these injuries has also not been contested during arguments before us, i.e., after the police had used tear gas to disperse the crowd. The arguments of Chief Moore here may be divided into three heads:-

(1)While Chief Moore conceded that there was an unlawful assembly, he argued that the Trial Judge erred in holding that the riot was in full swing before the Premier’s campaign team arrived, with the result that the third and fourth appellants could not in any way be identified with the others of the mob, for they had been arrested before the firing started.

(2)That there was no proof of intent to do grievous harm, in that the same degree of proof or same evidence was required to prove it as was required to prove attempt to murder.

(3)That “grievous harm” as defined in s.1 of the Schedule to the Criminal Code has not been proved as grievous harm should be read or interpreted on the same level as “maim”, “disfigure” or “disable”, as contained in S. 332 of the Criminal Code.

Mr. Onyiuke, on the other hand, argued that all the appellants were acting in unison and actively supporting each other in the obstruction of the highway and had agreed to use force if necessary to achieve their common objective. That as the third and fourth appellants had not abandoned the struggle at the time of their arrest, nor disassociated themselves with this common purpose, they were in law aiding and abetting under S.S of the Criminal Code. Finally, counsel urged that it was not necessary to prove intent to disfigure or maim, for the accused were not charged with this but with intent to do grievous bodily harm, which was borne out by the evidence.

That, on the evidence accepted by the trial Judge, a crowd of about 500 people congregating on a public highway, brandishing in some cases lethal weapons, singing songs, obstructing the highway with palm leaves and a tree cut across the road came within the definition of an unlawful assembly within the meaning of S.69 of the Criminal Code, cannot seriously be, and was not, in fact, contested or argued.

The section then goes on to provide for the stage at which such an assembly of persons turns into riot, as follows:-

When an unlawful assembly has begun to act in so tumultuous a manner as to disturb the peace, the assembly is called a riot, and the persons assembled are said to be riotously assembled.

At what stage did this unlawful assembly begin to act in so tumultuous manner as to disturb the peace? In our view they began to do this when having assembled on the highway in the manner already described, and it should be added that their action caused the school authorities of St. Peter’s Lutheran School in the vicinity to close down and send the pupils home, they refused to disperse when requested by the police so to do, stating that no one would be allowed to cross the road and forcibly defied the first attempt by the police to clear the highway. The phrase “in so tumultuous a manner” cannot have reference merely to the stage when the firing started, as Chief Moore contended. The peace was disturbed at a much earlier stage than that, and the manner of disturbing it was certainly tumultuous. At that stage the third and fourth appellants were with the crowd, and on the evidence identified themselves with the crowd. They were armed. At a later stage, when a baton charge was made by the Police and they were arrested, they endeavoured to resist such arrest.

We would endorse the finding of the trial Judge on this point, therefore, that a riot was in progress before the arrival of the premier’s election campaign team on the main road by the house of the first appellant. As to whether they had the intent to do grievous bodily harm within the meaning of S. 332(1) of the Criminal Code, the definition section of the Criminal Code defines “grievous harm” as:-

…any harm which amounts to a maim or dangerous harm as defined in this section, or which seriously or permanently injures health, or which is likely so to injure health or which extends to permanent disfigurement or to any permanent or serious injury to any external or internal organ, member, or sense.

The intent to do such harm can be proved by circumstantial evidence. Where persons unlawfully assemble in large numbers determined to use force if necessary to carry out their common intent of preventing certain per-sons from lawfully using the highway, and in order to achieve their object they carry such weapons as were used in this case on appeal, it seems to be clear that the intent to do grievous bodily harm was established. That they did do such grievous bodily harm to Ambrose Ivoke in the sense that they did harm which seriously injured or was likely so to injure his health if steps had not been taken by the medical expert, prosecution witness 3, is proved by the evidence of the said witness. There is no substance in the argument that such harm must be read on the same footing as a “maim” or a “disfigurement”, they are all different degrees or modes of committing the particular offences. The ground of appeal dealing with Count 7 must fail and is dismissed.

The only other point of any substance argued by Chief Moore on behalf of the appellants was that the Crown had failed to prove that the Assistant Superintendent of Police, George Akpan Ubo, had a duty to perform. This dealt with the 8th Count and the third ground of appeal in the Notice of Appeal of the first and second appellants and fourth ground in the Notice of the third and fourth appellants. Learned Counsel argued that all the appellants did was to obstruct the public highway and not the police in the execution of their duty. The argument would seem to ignore the following facts in this case, to wit:-

(1)That there was a riot and an obstruction of the public highway.

(2)That it was therefore the duty of any police officer in the vicinity to use means to quell the riot and remove the obstructions on the highway.

(3)That clearly the first appellant when requested by the Police to take his men from the highway refused to do so and declared that the Police and others would not pass that road.

(4)That when the baton party endeavoured to clear the road there was armed resistance from the crowd, resulting eventually in the wounding of several constables.

There is no substance in this ground of appeal and it is dismissed. One should, perhaps, refer to another submission of Chief Moore, which is contained in the fourth and fifth grounds respectively of the first and second appellants on the one hand and the third and fourth on the other, and reads thus:

The conviction ought to be quashed because the learned trial Judge elicited evidence of a previous conviction of one of the appellants’ witnesses, thereby gravely prejudicing the weight of his evidence unfairly.In arguing this ground, Chief Moore drew our attention to the following passage in the evidence of the 19th witness for the defence when questioned by the Court:-

I remember the story told myself as doctor Mbara in 1954. I was not a doctor then.

We can see nothing in this evidence which shows any admission of any previous conviction by the witness, and this ground of appeal also fails.

Before dealing with the question of sentence, we feel that this Judgment should not be concluded without some comment being made in praise of the Police for their remarkable restraint in a situation which was fraught with danger and was to say the least provocative on both sides of the fence.I now turn to the question of sentence on the Counts in which the appeal fails, i.e., Counts 1, 5, 6, 7 and 8.

On Count I the appellants were sentenced to four years’ imprisonment with hard labour for the first appellant, and three years each for the others respectively.

On Count 5 the sentence was five years’ imprisonment with hard labour for the first accused, and four years each for the others.

On Count 6 the sentence was five years’ imprisonment with hard labour for the first accused and four years each for the others.

On Count 7 the sentence was fifteen years’ imprisonment with hard labour for the first accused and twelve years each for the others.

On Count 8 the sentence was two years’ imprisonment with hard labour for the accused and eighteen months for the others.

On Count 1 the maximum provided by law is three years’ imprisonment. The sentence passed on the first appellant was therefore in excess of the powers of the trial Judge, and accordingly is set aside and in its place a sentence of three years’ imprisonment with hard labour is imposed. The Learned Trial Judge has throughout taken the case against the first appellant, being the leader of the mob, as being more serious than that of the other appellants and as a result passed shorter sentences on the latter. Following this principle the sentences passed on the other appellants on this Count is reduced to a term of two years’ imprisonment with hard tabour on each of them. We can see no reason to interfere with the sentences passed on the appellants on counts 5, 6 and 8 and the appeals on sentences on those Counts fail. As for Count 7, the maximum imposed by law is imprisonment for life, a punishment of equal severity as where an appellant is convicted of attempting to kill. There is nothing in the record to show that the appellants are anything but first offenders, nor is there any note to show what influenced the trial Judge in passing the sentences he did.

One must of course, take note of the fact that the persons wounded were Police Officers on duty, which in itself is a matter of sufficient gravity to warrant the imposition of heavy sentences on the appellants. On the other hand, there are other matters appearing on record which we feel should have been taken into account in the appellants’ favour and I would here mention only one or two:-

(1)Firstly, as I have said before, they are first offenders.

(2)Evidence of the fact that members of the crowd have at a previous election suffered at the hands of the opposing political team.

(3)The fact that it was not really the police that the appellants and the crowd were bent on stopping, but the political party following in the wake of the Police detachment.

After the appellants had been found guilty in the Court below, both Counsel for the Crown and the Appellants seem to have left the question of sentence entirely to the trial Judge without offering any matter in favour of or against the appellants, and the trial Judge immediately proceeded to pass sentence. We think that, at least as far as Defence Counsel was concerned, this was not a wise step. He should have put mitigating circumstances, if any, before the Court. In the case of Rex v. Wray, 7 W.A.C.A. 14, an appellant charged with murder was convicted of manslaughter and sentenced to fifteen years’ imprisonment with hard labour. On appeal to the’ West African Court of Appeal, the Court held that:-

In this case the appellant was charged with murder and convicted of manslaughter and sentenced to 15 years’ imprisonment with hard labour. He is not a member of the professional criminal class and so far as appears his act was a simple instance of violence. Having regard to this we think that the sentence was far too severe. At the same time a sentence of considerable severity is necessary as a deterrent. The sentence passed at the trial is quashed and in substitution therefore the appellant is sentenced to five years imprisonment with hard labour    . . . . . . . . . … Chief Moore has argued several matters in favour of the appellants and particularly the first appellant. While we feel that a sentence sufficiently severe to act as a deterrence should be passed on the appellants, we feel at the same time that the sentences passed were far too severe in the circumstances, and we set aside the sentences passed on the appellants on this Count and substitute therefore a sentence of eight years’ imprisonment with hard labour on the second to fourth appellants to run concurrently with the others. The appeal against sentence succeeds on this Count.

Appeals from Attempted Murder Allowed :Verdict of Not Guilty substituted:

Appeals from Causing Grievous Harm dismissed: Sentences reduced.


Other Citation: (1962) LCN/1015(SC)

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