Christopher N. Onubogu & Anor V. The State (1974)

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FATAYI-WILLIAMS, J.S.C.

At the Onitsha High Court on 22nd April, 1974, the appellants were jointly charged with and convicted of the offence of malicious damage to property contrary to section 451 of the Criminal Code of the East-Central State and sentenced to a year’s imprisonment with hard labour. The first appellant (Christopher Onubogu) was also convicted in the same court on the same date of the offence of unlawful wounding contrary to section 338(a) of the said Code and sentenced to two years’ imprisonment with hard labour. They both appealed to this court against their convictions. At the conclusion of the hearing on 15th August, 1974, we allowed the appeals and set aside the convictions and sentences passed on them. We now give our reasons for so doing.

The facts as found by the learned trial judge may be summarized as follows. On the day of the incident, Bertram Onubogu (2nd appellant) invited the complainant, Lawrence Okani (P.W.4) for a discussion over a land dispute in his house. Benson Okafor (P.W.5) who is a cousin of the complainant and Christopher Onubogu (1st appellant) were also present.

During the discussion, Lawrence Okani said that he had not met the first appellant before and did not know that he is a member of the Onubogu family. The first appellant did not take kindly to this remark, and after some altercation, he (the first appellant) left the sitting room where they were all sitting and went upstairs. Later, at the instance of Lawrence Okani, the second appellant sent for the first appellant and asked him to rejoin them and participate in the discussion. Still nursing the grudge he had against Lawrence Okani for not recognising him as a member of the Onubogu family, the first appellant refused and started to shout at Lawrence Okani and saying that he did not understand how Okani could come into their family compound and observed that he (Lawrence Okani) did not know him. On hearing this, Lawrence Okani got up to apologise, but before he could do so, the first appellant slapped him twice. Lawrence Okani got annoyed and gripped him. They both then started to fight and Lawrence Okani knocked the first appellant down and held him on the floor. While still holding down the first appellant, the second appellant and his wife hit Lawrence Okani on the back with a drink’s stool which consequently broke into pieces. On seeing this, Okafor (P.W.5) rushed to Lawrence Okani and pulled him away from the first appellant who had by then bit Lawrence Okani on the upper left side of the chest in self-defence.

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According to Lawrence Okani, the first appellant rushed into a room and brought a spear which he threw at him (Lawrence Okani). The spear missed its target and landed on the ground. Both Okafor and Lawrence Okani then ran out of the room with the first appellant in hot pursuit On getting out of the house, Lawrence Okani started to run round his car which he had earlier parked outside the house at the time he went in for the discussion. The first appellant threw the spear again and this time it hit Lawrence Okani on the ear. This resulted in a head wound which bled profusely. On seeing the wound, the first appellant took the spear and went back into the house.

At this juncture, the second appellant asked the first appellant to go back and puncture the tyres of Lawrence Okani’s car so that he could not escape.

The first appellant then punctured three of the tyres with the spear and also smashed the windscreen of the car. When he saw that the ftrst appellant had damaged the tyres and windscreen of his car, Lawrence Okani came out from the nearby bush where he had been hiding. On seeing him again, the ftrst appellant hurled the spear (Ex. D.) at him for the third time. Lawrence Okani described what happened thereafter as follows:

“I dodged and ran to where the spear fell, picked it up and 1st and 2nd accused took to their heels. I look at this spear. It was the spear I picked up at Onubogu’s family compound used by 1st accused. (NOTE:-witness identiftes exhibit D).

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When first accused was puncturing the tyres I shouted to Benson Okafor to go for the Police. I then went to a part of the compound with a small cement floor. I sat down there until some people came and collected me and took me to the Ogidi Police.”

Under cross-examination, Lawrence Okani explained what transpired thereafter as follows:

“From Ogidi Police Station, I travelled to Onitsha Police Station. I travelled in a motor car I never travelled on a motor cycle. Yes, if P.W.2 said he took me to Ogidi Police on the back of his motor cycle, he must be lying. P.W.2 did not take me on his motor cycle to the Onitsha Police Station. When I took hold of Exhibit D-the spear-1st and 2nd accused ran away. I then went and sat down on a concrete floor in the compound. I had Exhibit D with me when my friend and P.W.2 arrived. When I went to Ogidi Police my friends took Exhibit D. Exhibit D was taken from Ogidi Police to Onitsha Police in the car in which I travelled. I was present when Exhibit D was handed to P.W.3. In fact I handed it over to P.W.3. That day P.W.3 and I visited the Onubogu’s compound. When we visited the scene, I had Exhibit D with me. P.W.3 and I visited the scene before leaving with me. P. W.2 was not truthful if he said P. W.3 picked Exhibit D in Onubogu’s compound.

As against the above testimony concerning the spear, Edwin Okani (2nd P.W.) who is the brother of the complainant Lawrence Okani (4th P.W.) testifted as follows:

“I first reported to Onitsha Police before proceeding to hospital. I was given a police constable who accompanied us to hospital. After treatment the constable followed to 1st accused house. Police constable collected the spear (Id.1). I showed him my broken car, he saw the three tyres deflated by the accused. Police removed the three punctured tyres, the spear, the clothes soaked with blood which my brother pulled off and gave to the police.”

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(the italics are ours).

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