Sunday Udofia V The State (1984)

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OPUTA, J.S.C.

On the 27th September, 1984, the court heard the appellant’s appeal against the judgment of the Court of Appeal, Ibadan Division, dismissing his appeal against the judgment of Babalakin, J. convicting him of the offence of murder and sentencing him to death. After reading the respective briefs of counsel for the appellant and the respondent, and listening to the oral arguments in elaboration of points made in those briefs, the court decided to dismiss the appeal and give its reasons later. Hereunder are my reasons:

To follow the various points agitated in the appeal before us, it may be necessary to set down rather briefly the facts of this case. The appellant and his wife, Clementina Onwuzurike, were arraigned before and tried by Babalakin, J. sitting in the Ibadan Judicial Division of the Oyo State High Court. The charge was murder.

In the trial court, the prosecution’s case was that Clementina Onwuzurike (2nd accused) informed her husband, the 1st accused, now the appellant that the deceased, Raymond Nwachukwu, was making love overtures to her. Apparently displeased, the appellant rushed to the house of the deceased. He was not in but his wife, Francisca Nwachukwu, called as the 2nd P.W. was in. This was in the morning (6..30 a.m.) of 26th April 1979. The appellant complained to the 2nd P.W. that her husband, the deceased was “spoiling his family and he will not forgive him”.

Asked what the matter was, appellant replied “you will know when it happens”. Disturbed by this awe-inspiring and foreboding message the 2nd P.W. went to the house of the appellant where she met Clementina Onwuzurike (2nd accused). She told the 2nd P.W. that it was nothing to worry about, that her husband, the deceased came to inquire about the new accommodation they were negotiating. At about 2 p.m. of the same 26th April 1979, the appellant repeated his visit to the house of the deceased, he again met the wife, the 2nd P.W. The appellant then left a message that the deceased, when he returned, should come over to his house so that they will go to see the new room they have secured. The deceased returned from work at about 8.30 p.m. His wife, the 2nd P.W. gave him the message.

He went over to the house of the appellant. Not long after there was shouting.

The 2nd p.w., Francisca Nwachukwu and Linus Nwagwu, the cousin of the deceased rushed to the scene of the shouting. It was the house of the appellant. There they saw the deceased lying half dead in a pool of blood. The police was sent for but the deceased died before the police arrived.

What was the story of the appellant On the 27th April 1979, a day after the event, when the matter was quite fresh in his mind, the appellant made a statement to the police tendered as exhibit D. That statement is cogent, direct and consistent with the main props of the prosecution’s case – the love overture of the deceased to the wife of the appellant, the visit of appellant to the house of the deceased. In exhibit D the appellant stated that he reported the matter to the police who advised him “to maintain peace.” But the appellant apparently was not a man of peace. On that fatal day, he returned from work rather early and to quote the statement exhibit D, “On reaching without the knowledge of anybody. I hid myself under the bed waiting if Raymond will repeat his call to my house this night.” He went and hid under his bed, armed with a matchet. At about 8.30 p.m. the deceased came into the house of the appellant. Here I will reproduce the relevant portion of exhibit D:-

“Immediately I came from under the bed. Raymond seeing me jumped down from the bed and gripped me and we started struggling … I then lay my hand on my cutlass and started cutting towards the direction which inflicted severe matchet cuts all over his body. He ran out from my room and fell outside.”

This definitely is a confessional statement if proved to have been made voluntarily by the appellant.

In court, the appellant admitted signing the statement but insisted that he was beaten, kicked, slapped, his pants removed and he was made to sit naked on the floor. He then continued:- “I still refused to sign unless I see my wife. He then told me that after I sign he will allow me to see my wife, this make me to sign.” Since the issue here was whether exhibit D was voluntarily made or induced by threats, fear or promise from a person in authority, the learned trial judge did the right thing by conducting a trial of that issue in a mini trial within the main trial and found that exhibit D was the voluntary statement of the appellant made without any threat, inducement or promise held out to him by P.C. No. 50257 Paul Oseniha to whom the statement was made or by anybody in authority. The result is that whether the defence likes it or not exhibit D is evidence to be considered along with all other evidence in this case.

In his testimony in court, appellant denied discussing with her that “her husband has spoilt my family twice”, denied asking her to tell her husband to come to their (appellant’s) house. But on the most crucial issue – the killing of the deceased and the surrounding circumstances, the appellant testified as follows:-

“Immediately I entered my room I saw the deceased struggling with my wife.

My wife was crying and the children were crying. The deceased and my wife were on my bed having sex together. Before I open my mouth to speak the deceased jumped down and gripped me by the neck. I struggled, I could not speak. When I saw him on my bed my head was hot. At that time I felt that the man wanted to kill me. Before I entered the house I had a big matchet in my hand. Exhibit A was the matchet I had in my hand. I had this cutlass exhibit A with me because it was the cutlass I took to work that night. When the deceased gripped my neck, the cutlass fell. I then fell on the cutlass, at that time I did not know how my hand got hold of the cutlass. I then saw that the deceased ran out”.