Chima Ijioffor V. The State (2001)

LAWGLOBAL HUB Lead Judgment Report

AKINTOLA OLUFEMI EJIWUNMI, J.S.C.

At the conclusion of the hearing of this Appeal on the 25th of January 2001, this Appeal was dismissed by me. Thereafter I indicated that my reasons for its dismissal would be given on the 20th April 2001.

The Appellant was charged upon an information filed by the State, that on or about the 29th day of November, 1994 at Benin City in the Benin Judicial Division, he murdered one Endurance Osayima, punishable under section 319(1) of the Criminal Code Cap. 48, Vol. II Laws of Bendel State of Nigeria 1976, applicable in Edo State. Following the plea of the Appellant that he was not guilty of the offence, the State called six witnesses in support of the case for the Prosecution. The Appellant then gave evidence in his own behalf. He did not call any other witness to testify on his behalf.

The facts of the case made out for the Prosecution may be set out thus. The Appellant and Magdalene Airhuoyuwa, PW 1, were evidently lovers and as a result of that relationship, the PW1 first became pregnant in 1993 for the Appellant. That pregnancy was terminated as the Appellant clearly told PW1, that his family would not accept a pregnancy in such circumstances. After that pregnancy was aborted they continued with their relationship and which culminated in another pregnancy. Upon being informed of her condition by PW 1, the Appellant again told PW 1 to abort it. Though according to PW 1, Appellant gave her the sum of N1,800 for that purpose, she refused to abort the pregnancy. Eventually, she delivered a baby boy who was named Endurance Osayima, and who later became the victim of this murder. He would be referred to as Endurance from now. It would appear that the Appellant did not relent in his opposition to PW1 having a child for him having regard to the nature of their relationship. This he made manifest sometime after the birth of Endurance when he visited the house of PW1. On that day after he had enquired after the parents of PW 1, and was told that they were not at home, he threatened that he would kill the child since the mother had refused to abort the pregnancy as he wanted her to do. He came again to the PW1’s house on the 29th November, 1994 at about 7.30p.m. When he came, after learning that the parents of PW 1, were not at home, he left. Sometime afterwards and on the same day, i.e. 29th November, 1994, the Appellant returned to the house of PW 1. When he came in this time, he met PW 1 and other children in the family dancing. The Appellant then asked PW1 to bring the baby, i.e. late Endurance to him, where he was sitting on the bed. Though the mother, PW 1 explained to the Appellant that the baby had excreted in his pant, he insisted that the baby be handed over to him. PW1 then gave the baby to him after she had removed the dirty pant. About that time, Appellant gave the children the sum of twenty Naira to go out to buy coke for themselves. Soon after handling over baby Endurance to the Appellant, PW1 went to the backyard to wash the baby’s pant that was soiled.

While, washing the pant at the backyard, PW 1 heard the baby crying loudly and she ran immediately into the room where she left the Appellant and baby Endurance. The Appellant then gave her the baby, but PW1 noticed immediately that the mouth of the baby was white. PW1 then asked immediately the Appellant what he had put in the mouth of baby Endurance. Appellant did not answer that question. Rather he kept saying repeatedly, “breastfeed the baby”. PW1 dutifully offered her breast to the baby, but to her dismay baby Endurance could not suck the breast, rather she noticed the baby stretching. At that moment, Appellant ran away through the bush facing the house of the father of PW 1.

Soon after the Appellant ran away, baby Endurance was rushed immediately by PW 1 to where her mother was. From there baby Endurance was carried to the hospital where he was pronounced dead.

Dr. Suleiman Abu, the Chief Consultant Pathologist was invited by the police on 29/11/94 to carryout a post-mortem examination on the body of the deceased, baby Endurance. The corpse was identified to the doctor by one Felix Airuoya. The evidence of the doctor following the post-mortem reads, inter alia, thus:

‘”The corpse was that of a male child of average nutrition. Rigor mortis had passed away. There was no external injury. On examination internally there was yellowish necrotic substance (dead tissue) in the mouth. That extended down through the mouth to the gullet, stomach and to the intestine. There was some bleeding into the stomach. I took a scraping of the yellowish substance. The test on it was positive for acid litmus meaning acid test. All other systems appeared normal. I gave the cause of death in my opinion to be corrosive acid poisoning resulting in chemical bums and shock. The deceased was 10 weeks old.”

And under Cross-Examination the witness said, inter-alia, as follows:

“I did a blue litmus test and it turned pink. This irritates acid. The strength of the acid was unknown but the burns it created made to estimate that it was a corrosive acid. A weak acid cannot be corrosive……”

The Appellant at the close of the case for the Prosecution, elected to give evidence in his behalf. But he did not call any witnesses in his defence. In the course of his evidence in chief he duly admitted his relationship with PW 1, and the fact that PW 1 became pregnant again for him, and which resulted in the birth of the deceased son, Endurance. It is also significant that he admitted that he went to the house of PW 1 on the 29th of November, 1994. He claimed that when he got there he found PW 1 with the child crying. He then told her to breastfeed the child, and she did so in his presence. But the child continued to cry, and he had to take the child from the mother. However as the child continued to cry, he handed him over to the mother and left them. He further claimed that when he came back to the house later the same evening, he was arrested and beaten by the relations of PW 1, who took him to the police station. It was at the police station that he learnt that the child had died as a result of acid poisoning. He denied that he had anything to do with the death of his son, baby Endurance. The learned counsel appearing thereafter addressed the court.

After a careful review of the evidence led at the trial, the learned trial Judge gave a well considered judgment at the end of which the learned trial Judge held that the Prosecution had established beyond reasonable doubt the guilt of the Appellant for the offence of murder of baby Endurance as charged. The Appellant was therefore convicted of the offence and sentenced to death by hanging.

The Appellant thereafter lodged an Appeal to the court below. His Appeal was however dismissed. Hence, his further Appeal to this Court.

Pursuant thereto the learned counsel for the Appellant, I. E. Imadegbelo, Esq. filed and served the Appellant’s Brief. And for the State, the Respondent’s Brief was also filed and served.