1. IBONG UDO OKOKO alias MBIAM
2. SUNDAY NATHANIEL AKPAN (APPELLANTS)
THE STATE (RESPONDENT)
(1964) All N.L.R. 416
Division: Supreme Court
Date of Judgment: 23rd December, 1964
Case Number: S.C. 475/1964; Eastern Nigeria
Before: Bairamian, Onyeama and Coker, J.J.S.C.
Appeal against conviction:
The deceased and the defendants were seen sitting outside the second defendant's house. Later a witness, who came to visit the second defendant and knocked at the door, was refused entry; he heard the sounds of intense struggle within, and later saw the defendants take out the corpse of the deceased on a bicycle, he told the second defendant that he saw why he had been refused entry; and next morning the second defendant came and warned him to hold his tongue. The deceased was found lying on his right side with the bicycle on top of him. The doctor's evidence was that he had a fatal injury on the back of the skull which might have been caused by a blow or fall and could have been caused by a fall from a moving bicycle on to a very hard surface of the road. Where the deceased was found the ground was wet with rain. There was evidence that both defendants were ill-disposed towards him. Each set up an alibi, which the judge rejected as false.
They appealed from conviction of murder; the substantial ground was that the prosecution had failed to prove that the deceased was killed in the way described in the prosecution evidence and that it was not for the defendants to explain how the deceased came by his death; Counsel argued that on the medical evidence he might have died from a fall from his bicycle or from an accidental fall in the room.
(1) A trial court must decide a case on the evidence, and, although the burden of proof is on the prosecution, it must rest with the defendant, when he cannot elicit the material from the prosecution witnesses, to give evidence of matters peculiarly within his own knowledge if he wants them to be considered by the court.
(2) On the evidence the defendants were rightly convicted: there was the noise of an intense struggle in the room, after which the body of the deceased, whose death was caused by an injury at the back of his head, was brought out; the defendants did not give evidence of the events in the room, so the court could not speculate on the possibility of an "accidental" fall in the room; but falling in the course of a struggle could hardly be described as an accidental fall.
Woolmington v. D.P.P.  A.C. 462.
Mancini v. D.P.P.  A.C. 1, 11, and 12.;
R. v. Lobell  1 Q.B. 547, 551.
Other cases cited:-
R. v. Johnson  3 All E.R. 969;  1 W.L.R. 1478; 46 Cr. App. R. 55.
J. A. Cole for the Appellants.
Nwokolo, State Counsel, for the Respondent.
Coker, J.S.C. (delivering the judgment of the court).:-The appellants were on the 26th June, 1964, at the High Court of the Calabar Judicial Division (Balonwu, J.) convicted of the murder on the 3rd December, 1962, of on John James Akpan at Ikot Ofon Ikene, and they have appealed to this Court against their conviction.
The case against the appellants is that in the afternoon of the day of the murder, Akpan Ndok (4th prosecution witness) saw the deceased in the company of both appellants sitting outside the house of the second appellant. Later that day the fifth prosecution witness, Ebong Ntia, who was related to the second appellant by marriage and had come to visit him, knocked at his door which was then closed. The second appellant would not open the door for him and indeed asked him to go away. The witness however heard the noise of intense struggling going on inside the house. He became suspicious and thought that the second appellant was beating up his wife and so he turned round to the back of the house to see whether he could gain entrance into the house from there. Soon thereafter he saw the corpse of the deceased being carried out of the room of the second appellant into his backyard by a party of four men, including both appellants. He then told the second appellant that he could see why he was refused entry into the house of the second appellant. Fearing that he might be waylaid if he proceeded homewards, he hid himself in a nearby bush. It was getting dusk and there was rain accompanied by thunder and lighting. Whilst he was in hiding in the bush as the lighting flickered he saw both appellants and two other persons holding the corpse of the deceased on his (deceased's) bicycle which they pushed past him where he hid in the bush. Early on the following morning this witness got home. The second appellant came to him in his house and sternly warned him not to mention what he had seen in his (appellant's) house on the previous evening to anyone and that if he did he would be responsible for anything that might happen to the appellant.
There was evidence that about two years before the murder of the deceased he had complained to the police that he was waylaid and robbed of his bicycle by the first appellant who was thereafter prosecuted for that offence but was eventually discharged. That was admitted by the first appellant himself. There was also evidence that some time before the murder, a child of the second appellant died and the second appellant then swore that he would kill the deceased as the death of the child was a consequence of the adultery committed by the deceased with the mother of the child. The second appellant did not admit this evidence.
The doctor testified for the prosecution as follows:-
"I opened and examined the skull and found evidence of haemorrhage and brain damage on the back of the skull. This damage in my opinion was sufficient to cause death. The damage, in my opinion, might have been caused by trauma (injury) due to a fall or a blow on the back of the skull.
When cross-examined the doctor testified that he saw no external signs of blows having been dealt on the other parts of the body of the deceased and also that a fall from a moving bicycle on to a very hard surface of the road could have caused the injury to the skull.
In his defence, the first appellant stated that he knew nothing about the death of the deceased and adopted his previous statement to the police as part of his defence. In that statement he had maintained that he was at home throughout the day of the murder as his children were sick and that he did not know the second appellant at all much less go to his house. The second appellant on the other hand told a long story about how he went to the house of the deceased only after his death because all the villagers were summoned to be present at his funeral, and how he was arrested at the police station and charged with the murder of the deceased simply because he refused to agree to confirm that the first appellant had had some misunderstanding with the deceased. He also adopted his statement to the police as part of his defence. In his statement he said that he was away from home on the day of the murder.
The learned trial Judge after reviewing the evidence and the plea of alibi set up by the appellants came to the conclusion that the appellants were the murderers of the deceased and convicted them accordingly.
Learned Counsel for the appellants in presenting their appeal canvassed two grounds as follows:-
(i) That considering the evidence of the doctor who performed the post-mortem examination on the body of the deceased the prosecution had failed to establish that the deceased was killed by the appellants in the way described in the evidence of the prosecution witnesses and that it was not for the appellants to explain how the deceased came by his death; and
(ii) That the alibi of the second appellant was not properly investigated by the learned trial Judge.
With regard to the second ground: the second appellant made a statement to the police under caution after he was charged with the murder of the deceased. In that statement he said that he visited his friend "Akpan Ben Akpan Mbuk of Ikot Nko-Asutan Ekpe" and stayed with him from Saturday 1st December, 1962, to Monday morning, and then went to the mother of his houseboy; he did not know her name; with her he went back to the house of Akpan Ben, where he slept on Monday night until the morning of Tuesday, the 4th, when he left for his own house. Although the prosecution did not call the woman alluded to by the appellant in his statement, they called his friend Akpan Ben who testified that although the second appellant visited him and stayed as from a Saturday early in the month of December, 1962, he left on the morning of the following Monday and did not come back. It was clearly open to the appellant to call this woman as his witness if he so desired. Quite apart from this, however, both the father of the second appellant and his brother-in-law who were prosecution witnesses Nos. 8 and respectively, gave evidence to the effect that they saw the second appellant in his house in the afternoon on the day of the murder i.e., the 3rd December, 1962. The learned trial Judge considered the whole evidence adduced by both the prosecution and the defence and concluded that the second appellant's alibi was bogus and indeed observed as follows:-
"It is my finding that the second accused set up the alibi because he did not want to admit the events which took place in his house on the 3rd December and which were vividly described by Ebong Ntia."
We are satisfied that the Judge gave adequate consideration to the defence of the appellants and rightly rejected it. There is no substance in this ground of appeal which must and does fail.
Under the first ground, Mr Cole referred to the medical evidence and argued that there were two possibilities-(1)
that the deceased fell off his bicycle; and (ii) that the deceased fell inside the house, and that he died in the course of an accidential fall. Mr Cole reminded the court that the onus was on the prosecution to prove the guilt of the appellants, and that the appellants had no duty to explain how the deceased came by his death. He cited R. v. Johnson  3 All E.R. 969, which we have read; it has led us to look at the leading cases of Woolmington v. D.P.P.  A.C. 462, Mancini v. D.P.P.  A.C.1 and R. v. Lobell  1 Q.B. 547.
It will be sufficient if we begin with what Lord Simon said in Mancini at pages 11 and 12 of the above report.
"Woolmington's case is concerned with explaining and reinforcing the rule that the prosecution must prove the charge it makes beyond reasonable doubt, and, consequently, that if, on the material before the jury, there is a reasonable doubt, the prisoner should have the benefit of it ... Taking, for example, a case in which no evidence has been given which would raise the issue of provocation, it is not the duty of the judge to invite the jury to speculate as to provocative incidents, of which there is no evidence and which cannot be reasonably inferred from the evidence. The duty of the jury to give the accused the benefit of the doubt is a duty which they should discharge having regard to the material before them, for it is on the evidence, and the evidence alone, that the prisoner is being tried, and it would only lead to confusion and possible injustice if either judge or jury went outside it."
As to the suggestion that the deceased fell off his bicycle and hurt his head, the doctor said it was possible if his head struck very hard ground. But we remind ourselves that the doctor's evidence was that the damage might have been caused by injury due to a fall or a blow on the back of the skull. Boniface James Akpan, PW1, found the deceased lying on his right side on ground that was wet with rain. So the theory that he might have fallen off the bicycle as he was riding along the road and knocked his head on very hard ground on the back of his skull is not lent colour to by Akpan's evidence. In addition the evidence of Ebong Ntia is that the deceased was brought out as a dead man from inside the house of the second appellant.
As to the other suggestion there is no evidence of what happened inside the house, so neither the trial Court nor this Court can speculate on whether the deceased may have had a fall inside the house. Parenthetically we would observe that falling in the course of a struggle can hardly be described as an accidental fall: it is not like falling off a bicycle entirely on one's own.
We agree that a defendant in a criminal case cannot be asked to give evidence: the choice is his. At the same time, if he wishes to raise a particular defence, and if he cannot elicit from the prosecution witnesses evidence which fairly raises that defence, he and his Counsel have then to consider whether he should give evidence of a matter peculiarly within his knowledge. For example, if his defence is an alibi, he gives evidence of it; in Woolmington's case in which the defence was that the gun went off accidentally, the defendant there gave evidence of how it occurred. It will be useful to quote from the considered judgment in R. v. Lobell  1 Q.B. 547 at 551:-
"It must, however, be understood that maintaining the rule that the onus always remains on the prosecution does not mean that the Crown must give evidence-in-chief to rebut a suggestion of self-defence before that issue is raised, or indeed need give any evidence on the subject at all. If an issue relating to self-defence is to be left to the jury there must be some evidence from which a jury would be entitled to find that issue in favour of the accused, and ordinarily no doubt such evidence would be given by the defence. But there is a difference between leading evidence which would enable a jury to find an issue in favour of a defendant and in putting the onus upon him. The truth is that the jury must come to a verdict on the whole of the evidence that has been laid before them. If on a consideration of all the evidence the jury are left in doubt whether the killing or wounding may not have been in self-defence the proper verdict would be not guilty. A convenient way of directing the jury is to tell them that the burden of establishing guilt is on the prosecution, but that they must also consider the evidence for the defence which may have one of three results: it may convince them of the innocence of the accused, or it may cause them to doubt, in which case the defendant is entitled to an acquittal, or it may and sometimes does strengthen the case for the prosecution. It is perhaps a fine distinction to say that before a jury can find a particular issue in favour of an accused person he must give some evidence on which it can be found but none the less the onus remains on the prosecution; what it really amounts to is that if in the result the jury are left in doubt where the truth lies the verdict should be not guilty, and this is as true of an issue as to self-defence as it is to one of provocation, though of course the latter plea goes only to a mitigation of the offence."
In the light of the law, the appellants, who chose to set up a defence of alibi, cannot complain on the ground that the trial Judge did not speculate on the possibility of an 'accidental' fall inside the second appellant's house, and they cannot invite this Court to speculate on it either. What this Court has to consider is whether the conviction was unreasonable or could not be supported having regard to the evidence.
Put very briefly, the evidence was that in the afternoon the deceased was seen sitting with the appellants outside the second appellant's house; towards dusk there was the noise of an intense struggle inside the house, and next after that the corpse of the deceased was brought out by the two appellants and two others; shortly after, they wheeled the body onto the road and left it lying there, where it was found at about 8:30 pm lying on its side with a bicycle on top of it; and the defence of the appellants was an alibi which was untrue. In our opinion they were rightly convicted upon the evidence of murdering the deceased.
It is ordered that the appeals of both appellants from the decision of the High Court at Calabar dated 26th June, 1964, in Charge No. C/47C/1963 be and they are hereby dismissed.