Ayo Gabriel V. The State (1989)

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BELGORE, J.S.C. 

The appellant, Ayo Gabriel, was found guilty of murder after a trial at Owo in the High Court of Ondo State and sentenced to death. His appeal to the Court of Appeal, Benin Branch was dismissed.

The accused was the husband of the deceased and both lived together at Irugbe Street, Owo in the house of Chief Bolade Arala. The couple were in the habit of fighting. On 23rd day of November, 1983, the landlord, Chief Arala (P.W.2), arrived at the house and saw a large crowd at the door of the accused. That was at about 10 p.m.

The appellant and his wife had been fighting all day with their door locked. The P.W.2 on getting to appellant’s door knocked and appealed to the appellant to open the door. All along, the deceased was shouting for help. Instead of opening his door for P.W.2, the appellant shouted a threat: that if the P.W.2 did not leave his door, he would come out with his matchet to decapitate him (P.W.2). A report was therefore lodged with the police who never came that night. In the meantime, P.W.2 organised a vigil round the house so that the appellant would not come out, or if he came out, he would not leave the house. When the police called in the morning, the appellant was found in his room and the corpse of his wife was lying on the floor.

The doctor who examined the corpse found deep lacerations on the skull and bleeding from the nostrils. He certified probable causes of death as “beating and external bleeding”. The lacerations caused excessive bleeding and these injuries could have been inflicted with sharp object. The appellant made many voluntary statements to the police; in one he said he never fought with his wife, rather his wife (deceased) fought with Monday Bolade (P.W.3).

He claimed in another that he only saw the wounds on the deceased and he attempted to treat the wounds. His evidence on oath was another contradiction of his previous voluntary statements. The trial court treated the statements and the appellant’s evidence as unreliable, and rightly so in the face of the contradictions. The Court of Appeal could not do anything to help the hapless defence of the appellant.

On appeal to this court, it was contended that the deceased might have died as a result of a fall during a fight; that is to say, she died accidentally. This is a belated defence as it was neither raised at the trial court nor in the Court of Appeal. The appeal court will not entertain a new issue not raised in the trial court, except question of law or Constitution and only with leave of court. There was no issue of accident canvassed at the trial court and was never raised at the Court of Appeal. See Oredoyin v. Arowolo (1989) 4 N.W.L.R. (Pt. 114) 172; Fadiora v. Gbadebo (1978) 3S.C. 219; Shonekan v. Smith (1964) N.M.L.R. 59

The issue of contradiction in the evidence of the medical doctor has been over-blown by learned counsel for the appellant, Mrs. Ugboma. The doctor wrote a report in which he indicated finding deep lacerations on the skull which caused severe loss of blood, resulting in the death of the deceased. In his evidence in court, he in fact never departed from this assertion but his further opinion was elucidated in cross-examination, whereby he opined that sharp object could cause such injuries and that the injuries could not be self-inflicted.

He also testified that a fall against a sharp object could inflict such injuries. But it was never the case of the appellant that the deceased fell on any sharp object. No weapon or sharp object was tendered in court. Certainly there was no contradiction to bring this case within the sphere of the decision in Joshua v. The Queen (1964) 1 All N.L.R. 1 and 3.

The peculiar nature of this case is that the appellant lied all along and this never helped his case. There was overwhelming evidence that he was alone with his wife in his room. Also evidence was clear that violence was going on between him and his wife (deceased) in his room and when she was shouting for help, the appellant refused to open the door he locked from inside. When his landlord, P.W.2, appealed to him to open the door, he refused and threatened P.W.2 with death should he force open the door. Nobody else entered the room up to the next morning when police got to the scene and found the appellant and the corpse of his wife. It was he (appellant) that had explanation to make as to what killed his wife. He has not explained what caused the fatal injuries. The injuries could not be self-inflicted. If they were caused by accident, the appellant never proferred evidence of any. There was no evidence of provocation or of self-defence, whose burden of proof would normally be on the appellant, as in R v. Igwe, IV W.A.C.A. 117; R v. Igiri XII W.A.C.A. 877. The appellant on all the evidence before the court, was all along a master of his own mind and action that I find no mitigating circumstance to interfere with the decision of learned Justices of Court of Appeal.

I therefore dismiss this appeal as totally lacking in merit and uphold the decision of the Court of Appeal which affirmed the conviction and sentence of death passed by the trial court.

NNAMANI, J.S.C.: I had the advantage of reading in draft the judgment just delivered by my learned brother, BELGORE, J.S.C., and I agree with him that this appeal must fail.

For purposes of this concurring opinion, I shall adopt my learned brother’s resume of the facts of this tragic case. I shall only mention such of the facts as I need for this comment. I think it is also necessary to commend counsel to both the appellant and the respondent for their well written briefs of argument as well as their lively argument before us.

The appellant’s counsel, Mrs. Ugboma, in her brief of argument identified the following questions or issues as arising for determination of this appeal:-