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SC. 693/1965.

26TH MARCH, 1965.

3PLR/1965/30  (SC)






CHARLES DADI ONYEAMA, J.S.C. (Read the Judgment of the Court)




  1. A. COLE – For the Appellant.
  2. K. KEAZOR, State Counsel-for the Respondent.


CRIMINAL LAW AND PROCEDURE: – Murder by gunshot – Duty of prosecution to prove same – Reliance on circumstantial evidence – When deemed insupportable – Failure of prosecution to connect accused person to scene of murder, murder weapon or to murder by circumstantial evidence – reliance on contradictory testimony of 7 year old girl-child who did not even know what a gun was – How treated by court

ETHICS – PROSECUTION: – Failure to prove case – Anchor of a murder case on the conflicting testimony of 7 year old daughter of accused person – Effect

CHILDREN AND WOMEN LAW: – Children and Murder – Murder via gunshot – Evidence of a 7 old girl-child – Weight accorded same by court – Effect on entire case


ONYEAMA, J.S.C. (Delivering the Judgment of the Court):

The appellant was convicted of murdering Udo William Ibanga at Ukat Nsit on the 10th of September, 1965.

The case against the appellant was that about seven years before the trial he had had a land dispute with the father of the deceased. At a village meeting the land was awarded to the deceased’s father, and on the day the deceased died he had come to cut palm fruits from a palm tree standing on the land. The appellant, who had never accepted the award, on being told that the deceased had come to cut the palm fruits took a gun from his house and went to the deceased and shot him.

The evidence of the shooting was the evidence of the appellant’s daughter, aged about seven years, who said she saw her father come out of his house carrying a gun; she tried to stop him going to meet the deceased. She said she had not previously seen a gun and did not know what it was until she was told it by Willie’s wife (P.W. 2) on that morning.

Of the actual shooting, she said, in answer to question in cross-examination, that she was in the house cracking kernels when the gun was fired. When it was suggested to her that she could not have seen the appellant fire the gun, she answered:

“I saw. I used to get up and watch the accused and go back to cracking kernels……

She however went on to say that she heard the “noise” of the gun when she was in the house, and that on hearing the noise she came out. Her answers also showed that a person standing at the foot of the palm tree would not be visible from the house, and that she went out to the road, from where the foot of the palm tree was visible, after the gun had been fired. She answered in re-examination that when she went out on the road leading to the palm tree she saw the accused fire at the deceased and he fell.

There was no suggestion throughout the prosecution case that there was more than one report of gunfire. It follows that there is a strong conflict in the evidence of the little girl on the vital question whether or not she saw the appellant shoot the deceased. The learned trial Judge fully appreciated this for he found that no one saw the actual shooting, thereby disbelieving the little girl’s testimony on this point.

The Judge went on to hold that there was enough circumstantial evidence to point to the accused as the murderer: the circumstances, according to the Judge, were that there had been the land dispute and “when the appellant heard that the deceased was cutting the palm fruits he went into his house, took a gun with one aim in view, and that was to stop once and for all the recurrence of cutting the fruits.”

The little girl stated that after shooting the deceased the appellant took his gun home, but no gun was found by the police; the appellant denied that he owned a gun and apart from the evidence of the child (who did not know what a gun was) and the witness Saidi Obot (who was ill and warming herself before a fire at the back of the house) there was no evidence the appellant ever owned a gun or had one with him on the day in question.

The evidence did not point to the appellant as the person who killed the deceased any more than it pointed to other people in the neighbourhood who owned guns and had had disputes with the deceased. There was no evidence the deceased was even on the land in question at the time the gun was fired.

For these reasons we allowed the appeal, quashed the conviction and sentence, and directed that a verdict of acquittal be entered.


BRETT, J.S.C.: I concur.


AJEGBO, J.S.C.: I concur.

Appeal allowed.


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