Emmanuel Ben V. The State (2006)

LAWGLOBAL HUB Lead Judgment Report

AKINTAN, J.S.C.

The appellant, Emmanuel Ben, was arraigned before Umuahia High Court in Imo State on an information by which he was charged with the offence of murder, contrary to section 319(1) of the Criminal Code, Cap. 30, Laws of Eastern Nigeria, 1963 applicable to Imo State. The particulars of the offence are that the said appellant, on the 30th day of June, 1986 at Amawom Oboro Ikwuano in the Umuahia Judicial Division murdered one Ndukwe Iroanya. The appellant pleaded not guilty to the charge and the trial took place before Maranzu, J. Six witnesses testified for the prosecution. At the close of the prosecution’s case, the appellant gave evidence in his defence and closed his case.

At the close of the case for the defence, and after accepting written addresses from both counsel in the case, the learned trial Judge delivered his reserved judgment in the case on 6th June, 1989. The learned trial Judge held in his said judgment that the prosecution had proved its case against the said appellant who was accordingly convicted and sentenced to death. The appellant’s appeal to the Court of Appeal against the conviction and sentence was dismissed.

The present appeal is from the judgment of Court of Appeal in the case delivered at the Port Harcourt Division of that court on 11th November, 2004.

The facts of the case as given by the main eye-witness, Ogbuji Onwuzuruigbo, who testified as PW1, are as follows as reproduced from his evidence as recorded by the learned trial Judge:

… On that day i.e. 30th June, 1986 at about 9: 15 am, I am in front of my house holding one of my small children and the other two children were also playing in front of my house. Later I saw the deceased, Ndukwe Iroanya, as he was returning from the stream carrying a jerrycan of water. He passed by in front of my house and he then greeted me, he was carrying his jerrycan of water on his head as he passed by. Shortly after I saw late Ndukwe Iroanya as he was returning again towards me without his jerrycan. He was walking backwards at a very fast rate and I shouted and asked him what was wrong that he was retracing his steps backwards so fast without his jerrycan of water. Ndukwe Iroanya then replied and told me that the accused, Emmanuel Ben waylaid him on the road. Soon afterwards I saw the accused himself coming and he was holding a long Icheku stick and he hit the deceased with the Icheku stick firstly and missed his target, the deceased, he hit the deceased a second time and hit the head of the deceased directly with great force and the deceased Ndukwe Iroanya fell down on the ground and was shaking all over his body. When the accused saw that the deceased had fallen on the ground and was mortally wounded, he (the accused) took his two slippers shoes on his hand and ran away…

The witness, PW 1, said further that on seeing the appellant running away after the deceased, the (PW1) said he shouted on the appellant to come back and see the man he had killed but the man did not heed to his call. Instead, the man ran away. The deceased was eventually carried away from the spot by his relations sent for by PW1. The man did not regain consciousness before he eventually died later on the same day on arrival at the hospital but before the doctors could attend to him in the hospital. A post-mortem examination was carried out on the corpse. But the doctor who carried out the examination was not available to testify at the trial.

The accused told the police in his statement (exh. A) that the dispute between him and the deceased started a day before the incident leading to the man’s death. The appellant alleged that the deceased had slapped the appellant’s sister’s child. When he enquired from the deceased why he slapped the child, the deceased failed to give him any explanation. Rather, the appellant said he too was attacked by the deceased and some members of his family. He said he sustained injuries as a result of the attack on him and he had to report the incident first to the police and later to the local chief. The police directed that the deceased and members of his family that beat the appellant up and inflicted wounds on him should take him to the local chemist for treatment and pay the cost of such treatment.

They did not do so. But later that day, they offered N10 as cost of such treatment.

On the next day which was the day of the incident, the appellant gave his account of what happened as follows in his said statement to the police:

… As I was going, I saw Ndukwe (the deceased) returning from the stream because the road that led to the Chief’s place is the same road to our stream. He carried down his water can and ran back and I was coming because there is a house built at the corner of the road. When I got to the corner of the house I saw him with a stick coming. I ran back; he pursued me and hit me. Then I got a stick also in front of me. It was that time that Dee Ogbuji ran and saw us hitting each other with the sticks and the stick of the deceased fell on the ground; then I used my own stick and hit him on his forehead and he fell down. I started running into the bush. On Monday, I slept inside the bush and on Tuesday…

The appellant’s account of the incident, as given in his evidence at the trial is similar to what he said in his statement to the police (exh. A). He told the trial court in his evidence given in his defence, inter alia, as follows:

On 30th June, 1986 at about 8 a.m. in the morning I was going to the house of Chief Johnson Aguwamba when I met the deceased, Ndukwe Iroanya, as he was returning from stream. When the deceased, Ndukwe Iroanya, saw me, he put down the water he was carrying on his head and moved into a nearby house and collected a stick and as I approached him he hit me on the head with a stick and I fell back and he came again and hit me a second time with the same stick on my back and I fell down. I then picked up a stick from a nearby stick-fence and he attempted to hit me a third time, I warded off the attack with the stick I had picked up and the stick the deceased was carrying fell off while I was still having my own stick and he fell down. I hit him on his head. When he fell down, I went to lift him from the ground because he was still alive. At this juncture, PWI Ogbuji Onwuzurigbo, came and stated that I had hit his daughter’s son and that I should wait for him to come. When he came, he was carrying a cutlass and I saw him coming with the cutlass and I then left the deceased whom I was trying to lift and ran away. I ran into the bush. From the bush I found my way to Umuahia police station where I reported to the police that I had fought with someone and his brother was chasing me with a cutlass.

The learned trial Judge accepted the version of the incident given by the prosecution and rejected the defence put up by the appellant that he acted in self-defence. The appellant was accordingly found guilty as charged and sentenced to death. As I already stated earlier above, the appellant’s appeal to the court below was dismissed.