The State V. Omada Edobor & Ors.(1975)

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FATAYI-WILLIAMS, J.S.C. 

The accused, now appellant, was convicted of the murder of his sister, Owie Edobor, in the Benin High Court on 26th July, 1974. At the hearing of the appeal against the conviction on 30th October, 1975, we allowed the appeal, set aside the conviction and sentence, found him not guilty of murder as charged, and ordered that he should be acquitted and discharged. We now give our reasons for doing so.

The facts are as follows. Some time in October, 1973, the accused who lived in Udo Village in the Benin Judicial Division went to Benin to see the deceased who was a tenant of Anna Idiaghe (P.W.2) at No. 44, Osasogie Street, Benin City. The accused had come to ask the deceased to return to Udo Village and had informed the P.W. 2 that he and the deceased had something to do in the village and that the deceased would return to Benin City in about two days time. The deceased returned to Udo Village with the accused. About a week later, the Police visited P.W. 2 in Benin City and informed her that her tenant, the deceased, had died at Udo Village on the same day that she went home. P.W. 2 told the police that the deceased was hail and hearty when she left with the accused.

Apparently, some time after his return to Udo Village with the deceased, the accused informed one Nabulele Osenwegbiam (P.W. 3), who is the Odionwere of Igbesanwan Quarter in Udo Village, that the deceased had died of cholera and had been buried. P.W.3 explained that the custom of their village for announcing the death of a person in this case was not followed. He explained that contrary to custom, he did not hear anybody cry in anguish; moreover, as the Odionwere of the quarter, the deceased should not have been buried without his knowledge.

Be that as it may, the Police in Benin City, by the tenth day of October, 1973, had received some information about the death of the deceased. As a result of this information, P.C. Solomon Awala (P.C. 4) and some other policemen travelled to Udo Village where they succeeded in tracing the “pit latrine” where the deceased was buried. Later, on 21st October, 1973, to be precise, the body of the deceased was exhumed and one Dr. Aideyan (P.W. 1) performed a post mortem examination at the grave side. Consequent upon the doctor’s report, the accused was arrested and charged with the murder of the deceased. After he had been duly cautioned, the accused made a written statement to the Police wherein he explained how the deceased died. The relevant portion of the statement (Ex. ‘A’) reads-

“I did not kill my sister Owie as alleged. On the 5th of October, 1973, my sister Owie came from Benin to visit me at Udo, but before she came, she was suffering from belly trouble, so I gave her some medicines such as capsules and other medicine which I have at home. After giving her the medicine, she was still vomiting and she also had frequent stool. At about 2 a.m. on the 5th of October, 1975, my sister died, but before she died, she told me that it may be the vehicle she joined from Benin to Udo that caused her stomach pain. After she died, I brought her out and bathe her, and later went to invite Albert, Moses and Azikiwe to come and help me bury her that night. She was accordingly buried in my back yard at Udo. I did not bury her in the latrine. Why I did not inform the elders at Udo was because I have no relation at Udo that is why I approached the above mentioned people to help me bury her that night. ………. On the 5th of October, 1973, I came to Benin so I went to visit my sister at Oliha Quarters. On arrival, she told me she was preparing to visit me at Udo. So, both of us left Benin to Udo. It was on the same day she died.”

At the trial of the accused for the murder of the deceased, the doctor (P.W.1) who performed the post mortem on the body of the deceased testified that on the 22nd of October, 1973, he received a Coroner’s order to exhume and perform an autopsy on one Owie Edobor at Udo Village, and that he performed the exhumation and autopsy on the 24th of October, 1973. He explained how the grave was identified to him as follows:-

“The grave was identified by one Agboninekuegbe Edobor and one Moses Tongo as that of Owie Edobor a sixty year old female subject buried on 5th October, 1973.”

Significantly, the doctor did not say whether the body in the grave was identified to him as that of the deceased or if it was so identified, by whom. He described what he found as follows:-

“I found an oblique fracture of the left temple involving the wing of the patrons temporal and the posterior aspect of the parietal bone. She also had a bruised haematoma (swelling due to collection of blood) over the manubrium streimi (upper part of the bone covering the chest).

The internal organs of the abdomen and pelvis and chest appeared normal. In my opinion, death was due to fracture of skull and brain damage. The fracture could have been caused by a violent impact, such as a blow or being hit by a stick.”

When asked whether a fall could have caused the injuries, the doctor replied that to cause it, the fall must be on a stone from a great height.

It must be pointed out at this juncture that neither Agboninekuegbe Edobor nor Moses Tongo (the two persons who the doctor said identified the grave to him) testified for the prosecution. Before the accused was called upon to defend himself, the learned trial Judge, as could be expected, and quite rightly, held that no prima facie case had been made against the three other accused persons charged jointly with the accused. He found them not guilty of the offence and acquitted and discharged them.

In the evidence which he gave on oath in his defence, the accused still stuck to his story that the deceased died from vomiting and stooling. He said the 2nd, 3rd and 4th accused were the only persons who came to his aid after the deceased had died and that they came after he had bathed the deceased and wrapped her up in cloth. He denied hitting the deceased on the head or causing her death from a brain injury.