Emmanuel Ben V. The State (2004)

LawGlobal-Hub Lead Judgment Report

OMAGE, J.C.A.

This is an appeal against the decision of the High Court Umuahia, delivered on 6th June, 1989, Coram Maranzu, J. of Abia State of Nigeria. In a charge of murder against the accused person Emmanuel Ben; the learned trial court rejected his plea and convicted the accused person and sentenced him to death. The accused convict was dissatisfied with the judgment of the said court and has appealed to this court.

The appellant filed five additional grounds of appeal and formulated four issues for determination of the appeal. The issues are:

(1) Whether the absence of medical evidence as to the cause of death in the case was fatal to the prosecution case?

(2) Whether it was safe for the learned trial Judge to convict the appellant based solely on the evidence of witnesses who were related to the deceased?

(3) Whether there was sufficient evidence to sustain the defence of provocation and/or in the alternative defence of self-defence?

(4) Whether the prosecution proved the case of murder against the appellant beyond reasonable doubt as required by section 138(1) of the Evidence Act?

The respondent filed a brief in which he formulated the following sole issue:

“Whether the trial court was justified in convicting and sentencing the appellant for the murder of the deceased.”

The facts of the case are as follows: on 30/6/86, PW1 deposed in the court below as he sat in the front of his house at about 9.15 a.m. with his children, he saw one Ndukwe Iroanya, now deceased carrying on his head a jerry can of water, coming from the stream. Ndukwe Iroanya greeted him, and passed in front of his house.

Shortly after, he saw Ndukwe walking backwards hastily without the jerry can. PW1 said he shouted at Ndukwe to ask him whether he had seen a snake and Ndukwe replied that the accused person Emmanuel Ben waylaid him on the road. PW1 said he saw soon after the accused person running towards the deceased Ndukwe. The accused was holding a stick called “Icheku” with which he hit Ndukwe on the head with force after he had missed his target the first time. Ndukwe fell down and was shaking all over his body. When Emmanuel Ben, saw that Ndukwe had fallen on the ground and was mentally wounded, he took his slippers and ran away. The accused convict did not heed the call of PW1; and ran away. PW1 however said he called Emmanuel Ben and asked him to come and carry the person he has killed. At this time, as he was shouting, two young men appeared on the scene and carried the wounded Ndukwe Iroanya to his house. PW1 said he could not go immediately to Ndukwe’s house until his wife arrived to take care of the children who have seen the incident and were frightened. When later, PW1 went to the said Ndukwe’s house, he was told Ndukwe had been taken to the hospital. PW1 said he collected the “Icheku” stick used by Emmanuel Ben to beat Ndukwe when the latter had ran away from the scene.

Under cross-examination, PW1 said he did not know if the accused and Ndukwe had a previous quarrel; and that he did not know if anything happened between the deceased and the accused before Ndukwe started walking backwards. PW1 tendered the stick subsequently which was admitted as exhibit “B”. Onyemachi Anonye was one of the two young people who carried the said Ndukwe to his house, was the 2nd prosecution witness said he responded to the shouts of distress, together with another person, Udo Nwakamma to find that Ndukwe was lying on the ground injured and alive. Both of them carried the said Ndukwe to his home. Ndukwe was shaking in great pain but he could not talk and they did not learn from him what happened to him. It was the PW1 who told them what happened to Ndukwe: Udo Nwakamma helped also to carry the gravely wounded Ndukwe to his mother’s house and met there Ndukwe’s mother and his younger brother. A message was sent to Ndukwe’s brother, who on arrival from his teaching job arranged for a taxi, which took Ndukwe first to a police station where the party was advised to take him to the hospital.

The prosecution called also PW3, PW4 an infant, and PW5, a police officer who recited in evidence what he was told by PW1. The conclusion thereon is the testimony of the PW3, who deposed that he arranged to take his brother Ndukwe in a taxi to the hospital but that Ndukwe died before he was admitted to a hospital bed.

The prosecution witnesses were cross-examined by the counsel to the appellant in the court below.