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ETIM ETIM UDO v. THE STATE

(2018) LPELR-43707(SC)

In The Supreme Court of Nigeria

On Friday, the 9th day of February, 2018

SC.155/2016


Before Their Lordships

OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria

MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria

CLARA BATA OGUNBIYI Justice of The Supreme Court of Nigeria

AMIRU SANUSI Justice of The Supreme Court of Nigeria

SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria


Between

ETIM ETIM UDO - Appellant(s)

AND

THE STATE - Respondent(s)


Other Citations

; ;


Summary

INTRODUCTION:
This appeal borders on the Offence of Murder.
FACTS:
This is an appeal against the judgment of the Court of Appeal Calabar Division delivered on the 22nd day of June, 2015, Coram: Nwosu-Iheme, O. A. Otisi, S. O. Elechi JJCA dismissing the appellant's appeal against the judgment of the trial High Court per Stephen E. Okon J. on a one count charge of murder.

The accused/appellant was arraigned along with others before the High Court, Akwa Ibom State sitting at Ikot Ekpene and the appellant was the 5th accused. Between 23rd March 2004 and 16th July 2009, the matter was inconclusively tried by three (3) other judges. The appellant and his other co-accused persons were re-arraigned and fresh pleas were taken on the 16th July 2009 after more than five (5) years of their first arraignment.

The prosecution's case against the appellant was that he was amongst the accused persons who went to the house of one Okon Tom Akpan at about 10 p.m. and unlawfully killed him. According to PW1, one Emem Alphonsus Udoh, all the accused persons and the deceased are from Abiaokpo Edem Idim Village. PW1 was a seamstress and lived with the brother-in- law, Okon Tom Akpan, the deceased. PW1 testified that on the 5th day of July 2003, at about 10 p.m., she was sleeping in the house of Okon Tom Akpan (deceased). Someone knocked on the door of Okon Tom Akpan room. Okon Tom Akpan then asked who was knocking. PW1 stated that the person knocking replied that he was Etim Etim Udo, whereupon the deceased then asked him his mission to his house. The person replied that he wanted to collect his clothes so that he could use same the following day. The deceased was a dry cleaner at Ikot Ekpene General Hospital but did part-time private dry-cleaning jobs at home. PW1 stated that he told the 5th accused/appellant to come back the next day as it was already late. The alleged 5th accused was said to have persisted and pleaded with the deceased to be given the clothes because he wanted to wear them the following morning that is 6th July 2003. The deceased was moved by the plea of the purported "Etim Etim Udo" and opened the door, she heard him saying "what have I done to you". 

PW1 testified further that Okon Tom Akpan, was strangled and the assailants stabbed the deceased's eye with a dagger. PW1 stated that apart from the appellant, the other accused persons were Unyime George, Ofonime Usua, Nsikak Usua and the 2nd accused person. PW1 stated further that she saw the accused persons as there was moonlight and NEPA light. She said that where she stayed was not far and that she was in her room and the incident took place in the parlour close-by, where the deceased was ironing clothes. PW1 stated that when she opened the door of her room and got out because of the noise, she pleaded with them to leave her in-law alone. PW1 stated that the 3rd accused, Ofonime Usua Udom pushed her inside and pointed a gun at her and said that if she talked again, he would kill her. The accused persons/convicts locked PW1 inside her room and continued to beat the deceased and took him away. PW1 shouted and banged the door until the door was removed. She then ran out of the room. As she shouted, people came out. As people tried to approach the accused persons, they threw bottles at them and threatened to kill anybody who got near to them. They took the deceased to George Unyime father's compound and continued to beat him until he died.  PW1 testified that the deceased had cuts all over his body. The accused persons carried the corpse of Okon Tom Akpan from George Unyime's compound. When they saw the crowd, they dropped the corpse and ran away. PW1 thereupon ran to the house of the village head of Abiaokpo Edem ldim, Chief Nana and laid a report. Subsequently, the police arrived and took her to the station. PW1 made two statements to the police dated 06/07/2003 and 11/07/2003. 

On the other hand, the appellant denied the charge in its entirety as he also stated in his extra-judicial statement to the police dated 07/07/2003 and 13/7/2003 respectively - Exhibits "D" and "D1".The appellant stated that on Saturday 5th July, 2003, at about 4.30p.m after his work, he went to the primary School in Abia okpo Edem Idim Village to watch the football practice session. After the football practice session at about 6.54p.m., he decided to go home. Along the road, one Nsikak Usua Udom demanded that the appellant's junior brother, Sunday Etim (alias Udo Etim Udo Obot) should buy hot drink for him because of the job he got. The appellant's junior brother agreed and they all went to a joint (shop) where illicit drinks and cigarette were sold. The appellant said he was in the company of the following persons namely (i) Nsikak Usua Udom (m); (2) Ofonime Usua Udom; (3) Amos Johnson; (4) Unyime George alias Kingsley; (5) Christopher George; (6) Daniel Edet and (7) Sunday Edim Udo alias Udo Etim Udo Obot. The appellant's junior brother bought drink of N60 for the boys. The appellant maintained that at about 8.15pm he and his younger brother Sunday Etim Udo Obot alias Udo left the drinking joint for their house while the other boys stayed behind there. The appellant maintained in his statements Exhibit "D" and "D1" that he slept together with his younger brother Sunday Etim Udo in the same room. The appellant said that among the persons who spent the night together with him were one Nwa Eka, a girl-friend to his younger brother, Sunday Etim Udo and Inyene, a girl-friend to another junior brother of his - Idongesit Etim Udom. In the morning at about 6.20a.m the appellant said he left for Ikot Ekpene as he is a commercial driver. The appellant denied being among the assailants of Okon Tom Akpan on 5th July 2003 as alleged. 

The 1st accused, Unyime George Udofia in his second statement to the police dated 12/7/2003 Exhibit "82" stated that appellant was not present during and after the incident but that appellant is his-elder brother's friend. In Exhibits "C" and "C1" 2nd accused did not mention the name of the appellant. The High Court found the Appellant guilty of the offence of Murder and convicted him accordingly. Dissatisfied with the decision, the Appellant appealed to the Court of Appeal. The Court of Appeal upheld the decision of the High Court. Dissatisfied, the Appellant appealed to the Supreme Court.

ISSUES:
The Court determined the appeal on this sole issue couched as follows:

"The sole issue asks if the Court below was right in affirming the conviction of the 5th accused/appellant for murder punishable under Section 326 (1) of the Criminal Code, Laws of Akwa Ibom State."

DECISION/HELD:
On the whole, the Court found no merit in the appeal and accordingly dismissed same.


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