Ihemegbulam Onyegbu V. The State (1995)

LAWGLOBAL HUB Lead Judgment Report

OGWUEGBU, J.S.C. 

The appellant herein was on 28:5:85 found guilty of the murder of Marbel Nnaoma and sentenced to death by Ononuju, J. sitting at the Umuahia Judicial Division of the High Court of the former Imo State.

The appellant appealed to the Court of Appeal, Port Harcourt Division against the judgment. His appeal was unsuccessful and he has further appealed to this court.

At the hearing of the appeal on 2:2:95, this court granted the appellant leave to file and argue four additional grounds of appeal. From the grounds of appeal, the following issues were formulated in the appellant’s brief of argument:

“(1) Whether the appellant was properly convicted and sentenced to death for the crime of murder when the prosecution did not prove beyond reasonable doubt the appellant’s complicity in the cause of the deceased’s death

(2) What is the effect of the prosecution’s failure to investigate the appellant’s defence of alibi, when from the record, such a defence had been raised by the appellant both to the police and at the trial

(3) Whether by virtue of S.183(1) of the Evidence Act (Cap. 112, L.F.N. ,1990), the sworn evidence of PW1, a child, was properly received, having regard to the fact that there was neither a preliminary inquiry nor a note in the record indicating that PW1, as a child witness was capable of understanding the nature of an oath”

It will not be necessary for me to set out the two issues identified in the respondent’s brief of argument. The two sets of issues overlap and I will determine the appeal on the issues formulated by the appellant.

The facts of the case presented by the prosecution are as follows:

In the evening of 28:2:81, the deceased went to their farm with her son (PW1) to collect vegetables. According to PW1, on their way to the farm, they met the appellant who greeted them. He asked the deceased where she was going and the latter told him that they were going to collect vegetables from their farm. The appellant told the deceased that he was returning from the farm also. While in the farm, the appellant met them and asked the deceased to come. The deceased told him to say whatever he wanted to tell her. Then the appellant demanded sexual intercourse with her. The deceased told him that it is an abomination to have sex in the bush.

On getting this reply, the appellant pounced on her, threw her on the ground and started to stab her with a pen knife which he brought out from his pocket. The deceased sustained injuries and blood was gushing out from the injuries. PW1 pleaded with the appellant to spare his mother who had done nothing to him when the appellant paid no heed, he started running home to call his father (PW2). As he was running, the appellant held him and gave him several stab wounds with the pen knife. The appellant finally left him and ran away, PW1 fell down. He heard a voice calling on his mother (the deceased). It was the voice of his father (PW2). He responded and asked PW2 to come because the appellant had killed the mother. The appellant came back, stabbed him on the chin, ran away and did not come back again.

PW2 (the husband of the deceased) arrived at the scene with his senior wife (PW3) and found the deceased leaning on the foot of a tree in a pool of blood. He saw stab wounds on both sides of her neck. He observed that her two ears had been cut off. All the clothes she wore and her necklace were on the ground. She was almost naked. He asked her how she came by the injuries. She told him something. He observed that PW1 had Slab wounds all over his body as well. PW1 also told him something.

He could not carry the deceased. He carried PW1 to the house and asked PW3 to look after the deceased. On getting home he alerted people at home who accompanied him to the scene and carried the deceased out from the farm. The deceased who was still alive was taken to the General Hospital, Uzuakoli in a taxi. She died in the hospital on the night of the incident P.W.1 was also admitted and treated in the same hospital.

The incident was reported to the police and the appellant was at large. A search party was organised and the appellant was caught in the bush on 3:3:81, brought to the village and later handed over to the police. The appellant told the police the spot where he dropped the pen knife which he used in Stabbing the deceased and P.W.1. The police recovered the knife at the spot PW4 (Friday Onuoha) was one of those who carried the deceased out from the farm. He was also a member of the search party that caught the appellant.