CPL. Andrew Emwenya V. Attorney-General Of Bendel State (1993)

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BELGORE, J.S.C.

On 31st day of December 1984, one lady by name Queen Ero, now deceased, was going to buy bread and was accompanied by her sister Esole Ero (P.W.6) As they were going on the road they got to a place by the front of the house of the appellant, Corporal Andrew Emwenya, when an accident occurred involving the daughter of the appellant and a car driven by a woman.

The accident attracted a crowd including the mother of the appellant who came out of the house to see her grand-daughter who sustained a broken leg in the accident. The deceased and her sister (P. W.6) helped the woman driver of the accident car to dispatch the girl to the hospital. After the departure of the victim of the accident and the car from the scene, the mother of the girl was crying and the deceased followed her towards the house commiserating with her.

At this juncture, the appellant who never saw the accident and probably only heard of it, arrived at the scene and asked the deceased whether she was the driver of the car involved in the accident that injured his daughter. The deceased answered in the negative and went further to explain that she and her sister were only trying to help and as neighbours they were there trying to calm down the appellant’s mother who was crying and to see her into the house.

There and then the appellant slapped the deceased whereby she fell down; as she was on the ground the appellant hit her with a hammer he was holding on her chest, kicked her and stamped on her stomach. The deceased was shouting for help whereby her sister, P.W.6, rushed to their house nearby to inform their parents of what was going on. The P.W.6 returned to the scene with their mother, P.W.4 and people who were attempting to revive the deceased who was unconscious. There P.W.4 challenged the appellant who in turn threatened her after some altercations, with iron rod. P.W.6 and P.W.4 then carried the deceased to the hospital where she was pronounced dead.

The appellant, a soldier, disappeared for three years from Benin City and efforts to trace his unit was futile. When he sneaked into the city three years later, he was apprehended. He denied ever attacking anybody and said he could not remember seeing either the deceased or the P.W.6 at the scene of accident where his daughter was hit by a vehicle. All he remembered was that on 26th June, 1988, when he was at his house some persons came and alleged that he was the one that killed Queen Ero and they beat him up, tore his uniform and removed his army identity card after removing N343.00 from his pocket.

At his trial at the High Court, Benin City, learned trial Judge, Akpiroroh J, after a thorough review of the whole evidence for prosecution and defence found as follows:

“After a careful review of the entire evidence as to how the accused beat the deceased to death. I am not satisfied that there was any conduct of the deceased which could provoke the accused to beat the deceased to death. There was no doubt that the intention of the accused was at least to cause grievous bodily harm to the deceased when he started to march, kick and hit her on her chest with a hammer he was holding as borne out from the evidence of P.W.6. In my opinion there was the clear intention by the accused to kill the deceased. I have no hesitation whatsoever in holding that it was the continuous assault of the deceased by the accused that caused her immediate death on the spot. I totally reject the defence of the accused person and I am quite satisfied that P.W.6, the only eye witness who testified for the prosecution spoke the truth when she said that it was the accused person who beat the deceased to death on that fateful day.”

and thereby convicted him and sentenced him to death.

On appeal to Court of Appeal on the general ground, learned counsel formulated three issues all revolving around proof beyond reasonable doubt and the failure to prove with certainty the cause of death. The Court of Appeal dismissed the appeal and hence the appeal. Learned senior advocate, Orobiyi Rhodes argued what I regard as a general ground which runs as follows:

“GROUND OF APPPEAL

1.The Court of Appeal erred in affirming the judgment and conviction of the trial Court when the prosecution did not prove its case beyond reasonable doubt.

PARTICULARS OF ERROR

(i) The Learned Justices of the Court of Appeal erred when they affirmed the conviction and sentence of the accused person on evidence of P.W.6 a sister to the deceased whose evidence did not prove the cause of deceased’s death neither did her evidence explain how the accused got the hammer which he used to attack the deceased.