Mbanengen Shande V. The State (2005)

LAWGLOBAL HUB Lead Judgment Report

EJIWUNMI, J.S.C.

This appeal may be rightly described as the fury or rage into which a jealous wife could be driven. Before the appellant in this appeal was arraigned before the High Court of Benue State in the Benue State Judicial Division, holden at Makurdi upon the application of the prosecution to prefer a charge brought pursuant to section 185(b) of the Criminal Procedure Code. The said application was supported by proofs of evidence, the statement of the appellant and the medical report of the deceased. As the learned trial Judge, having read the said application with the documents attached thereto, granted leave for the preferment of the charge against the appellant. The court also ordered that the appellant be served with the proofs of evidence and the charge.

After the orders of the court were duly effected on the appellant, the plea of the appellant was taken. Before the plea was taken, the charge was read out to the appellant by the court clerk in the English language and was read out in the Tiv language to the accused who admitted that she understood the charge. The appellant, who was then asked for her plea, said “the allegation is not true” and the learned trial Judge then entered a plea of not guilty for the appellant.

The charge to which appellant pleaded read thus:-

“That you Mbanengen Shande, on or about the 9th day of May 1997, at Achia Village, Kwande Local Government Area within the Benue State Judicial Division did commit culpable homicide punishable with death in that you caused the death of Mrumun Dera by pouring kerosene on her body while she was asleep and setting her ablaze with the knowledge that her death would be the probable consequence of your act and thereby committed an offence punishable under section 221 of the Penal Code.”

At the trial of the appellant, four witnesses gave evidence for the State and only the appellant gave evidence in defence of the charge. The evidence led by the respondent may be summarized briefly as follows: PW1, whose names are Benjamin Iorumun Shande is a civil servant and the husband of the appellant. They apparently lived together at Achia, where they have their matrimonial home.

The witness said that on account of his work, he stays more regularly at Adagi but he does go home regularly. On the 8th May 1997 while at Adikpo, he learnt that Mrumum Dera the deceased, had enquired after him. He therefore went over to see her at Jato-Aka where she lived. The next day which was the 9th of May, he agreed with the deceased that she should come to his home at Achia. There, according to the witness she would join his own wife, the appellant to plant groundnuts. PW1 said that he arrived at Achia on that day before the deceased. He also did not meet his wife who had gone to the school where she was a teacher. He then went to the farm. By the time he came back, the appellant had returned home and prepared dinner for the family. It was soon after that the deceased arrived.

When she arrived, she joined the witness where he was sitting with his father and junior brother. Though she was offered food, the deceased declined the offer as she had also brought some food along with her and which she served to the people she met at the table under the ‘Ate’. The appellant also joined them there, as she was invited so to do by PW1. Some two hours after they had eaten, PW1 stated that as the deceased told him that she was feeling cold and would like to sleep, he instructed the appellant to prepare the room for her. The room, a thatched round hut, belonged to the witness within the compound of PW1’s father. And it is the room according to the witness, where the deceased and the appellant slept when the deceased visit them.

He claimed that sometime after the appellant had gone into the room, he heard a cry from the room. He and his brother then ran to the room/hut. As they could not easily gain entrance into the room, his brother, PW2 had to kick the door open. Inside it they found the deceased with fire on her body. She was then quickly rushed out of the room to a clinic. In the room, the two children of PW 1 were found sleeping. The appellant was also in the room when they entered. The deceased was later rushed to the hospital where she died. PW1 admitted that the deceased had been his friend between 1995-1997, and that the deceased and the appellant had been friends and did exchange visits in the period. He was not aware of any trouble between them.

The appellant as I have stated above gave evidence on his own behalf. Also tendered and admitted is the extra-judicial statement ex. 5 made to the police by the appellant after she was arrested.

Also admitted in evidence are exhibits 1- 4 which are (1)4L gallon ex. 1; (2) kerosene inside the 4L gallon ex. 1A; (3) some burnt pieces of cloths ex. 2; some grass ex. 3; medical report on the post mortem on the deceased, ex. 4, and ex. 5. The appellant in her oral evidence admitted that she made ex. 5. But she went on to give oral evidence of what happened in the room before and after the fire incident that led to the death of the deceased. She also gave evidence about the relationship between PW1 and the deceased. It is manifest from her oral statement and the extra-judicial statement exhibit 5, that the appellant had not clearly accepted the ‘lovers’ relationship between the deceased and her husband PW1. Indeed from what she gave in evidence, it is I think, manifest that she greatly resented the relationship as she was convinced that it was because of it that her husband had on many occasions abandoned her and the responsibilities of the appellant for the upkeep of the family. I will later in this judgment have cause to dwell further on this aspect of the case.

In the mean time, let me say that the trial court rejected her oral testimony with regard to how the deceased met her death. Exhibit 5 her extra-judicial statement then formed the pivot of the judgment of the trial court for reaching its conclusion, about the guilt of the appellant. Before arriving at this conclusion, the trial court duly considered whether the defences of provocation and of accident was open to the appellant but the trial court held that those defences were not available to her. She was accordingly found guilty of the offence of culpable homicide punishable with death contrary to section 221 of the Penal Code. As the appellant was very dissatisfied with the judgment and orders of the trial court, she appealed to the court below. As that court affirmed her conviction by the trial court, she has filed a further appeal to this court.

Pursuant thereto, four grounds of appeal were filed against the judgment of the court below. And in consonance with the rules of this court, briefs of argument were filed and exchanged by the parties.

After a perusal of the two briefs filed by counsel on behalf of the parties, it is clear that they are agreed that there are only two issues for the determination of this appeal. They read thus:-