Iyu V The State (1965) LLJR-SC

Iyu V The State (1965)

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On February 17th, 1965 at Abakaliki in Eastern Nigeria, Phil-Ebosie J. convicted the appellant of the murder on the 5th April, 1964 at Okpoto Ntezi, in the Abakaliki Judicial Division, of one Ogbu Igele: (charge AB/84C/64). That the appellant killed him is not in dispute; but it is argued that he did so either in self-defence or, rather, under provocation.

The day before the killing, they had a dispute about some sticks. The prosecution evidence is that in the evening the appellant went to the house of the deceased and called him to come out and fight, but on his wife’s advice the deceased did not come out but went to spend the night at his brother’s, on whose advice early next morning the deceased left to call people to settle the dispute; soon after, his brother saw him coming back towards the compound holding his head; he fell down by the side of the main road and died at a spot half way between his house and that of the deceased, which are about fifty yards apart. There was no suggestion by the appellant that the deceased was armed.

The evidence that he fell and died there was not disputed by cross-examination. The medical evidence is that the deceased had:-

“A deep incised wound running downwards and backwards from the angle of the remus of the mandible to the neck measuring approximately six inches long by three inches wide by two inches deep incising the stermoniastoid muscle, the jugular veins and the carotid artery of the right side.”

The doctor was of opinion that death was due to shock from excessive bleeding. With a wound like that, the deceased could not have walked any distance; he must have been struck near the appellant’s house, and the nature of his wound leaves no doubt that he was struck from behind. The gash ran from the corner of the jaw below the right ear downwards and backwards. Most persons are right-handed, and a blow on the right side of the neck generally means a blow from behind; what puts it beyond doubt in this case is that the wound ran backwards. Moreover it was but one wound only. When two persons are face to face and one of them raises his hatchet to strike, the other lifts up his arm to save his body and has his hand or arm cut; usually there are more cuts than one in such circumstances. In the present case the deceased was struck from behind and received the blow unawares.

After slashing the deceased, the appellant went to the Police Station at Abakaliki to report, and a constable (Okoi Ifere, p.w.5) came with him to the village and took the corpse to Abakaliki for a post mortem. Next day (the 5th of April, 1964) he took a statement from the appellant with the help of an interpreter named James Ogbei, in which the appellant stated as follows:

“The deceased Ogbu Igele was my brother. We are related in the father side. Yesterday 4-4-64 we had a dispute over the rightful owner of some life sticks for supporting our yam vines. I cut the sticks and he said that the sticks belonged to him and that we should divide them but I refused. Today, 5-4-64, while he was passing to go and call people who will settle the matter for us, I waylaid him in our bush path and cut him at the back of the neck with my hatchet. He ran away after cutting him and I too went and saw him reporting to our brother Onyia Igele that I cut him. I then ran down here to report to the police at Abakaliki that I wounded my brother with a matcher. I was surprised to go back to my village with a policeman and saw my brother dead. I am sure that it was the medicine being done to me by my enemies just to kill my own brother so that they might come to take over our land. Our enemies are people from other villages who are not from my village. I do not suspect a particular person to have charmed me.”

The appellant’s admission, that he waylaid the deceased and cut him at the back of the neck with his hatchet, accords with the medical evidence.

When PC. Ifere (p.w.5) produced the statement at the trial and it was interpreted to the appellant, he told the trial judge that it was not his statement, adding that the interpreter interpreted a different thing to the police constable from what he said. James Ogbei, who had interpreted for the constable, also interpreted for the magistrate at the preliminary investigation; and in cross-examination by counsel for the defence, the constable said that the appellant never objected to James Ogbei. The constable explained that, as he had three murders on hand, he overlooked the practice of taking a person who confessed before a senior officer with his statement; he also said that at the preliminary investigation, when the statement was read to the appellant, he admitted that it was correct. James Ogbei was not called as a witness for the prosecution to verify the statement. He had come to the High Court to interpret, but the appellant objected to him on the ground that he was related to the deceased; he was given up as the interpreter; and he was not called as a witness when the case was resumed with another interpreter some days later.

When the appellant gave evidence in his defence, he did not say anything about his statement to the constable. His evidence was that in his absence the deceased carried away the sticks supporting his yams in his farm; that in the evening the deceased came to his compound and told him they should go and see about the sticks he had cut, and that when they arrived at the farm the deceased said he had taken some of the sticks; that they both fought at the farm and he, the appellant, sustained some injuries at his back; and his evidence continued as follows:

In the morning the deceased again came to my house and asked that we should return to the farm. I told him that I was not going. I collected my matchet to go to another place. I left to another farm. The deceased came there and insisted that I should come to the farm. I refused and we started to fight again and during the fight God took this matchet, exh. 3, and wounded the deceased. After this I came to Abakaliki and reported the incident to the police. I accompanied police back to the place. P W S was the policeman.” The learned trial judge, after setting out the evidence, goes on to say as follows:-

“The issue in this case as I have already observed is not whether the accused killed the deceased for this has been admitted by the accused. It is in the face of the evidence whether the accused killed the deceased as contained in his statement to the police which the accused has now retraced or whether the deceased met his death during a fight with the accused in his farm.”

The trial judge comments that the story given by the appellant in evidence was not adumbrated in the cross-examination of the prosecution witnesses, and infers that his counsel must have heard that story for the first time when the appellant was giving evidence, for the story was completely at variance with the account of the events in the morning when the deceased was killed. As for the appellant’s story, that in the course of a fight at the farm God took the matchet and wounded the deceased, the learned judge thinks it is ridiculous, and regards the story of a fight in the farm as a fabrication pure and simple.

In regard to the confessional statement, the trial judge notes that the appellant was not taken before a senior police officer to confirm his statement; he also remarks that it is advisable to call the interpreter to verify the statement by evidence at the trial. He then goes on to observe that the appellant admitted at the preliminary investigation that the statement was correct; that the magistrate’s note confirms the constable on this point; and that in his evidence at the trial the appellant did not contradict the constable’s evidence on the point. The learned judge also thinks that the appellant objected to James Ogbei as interpreter at the trial in order to give the impression that his statement had been wrongly rendered to the constable. Finally the learned judge states that “considering the whole evidence” he is satisfied that the charge was proved beyond reasonable doubt, and convicts the appellant of the murder.

The first ground of appeal is that, as the prosecution did not call the interpreter to verify the statement, it should have been rejected, and that the trial judge erred in relying on it to find the appellant guilty; and the argument is that it was on the statement only that the judge relied. As for the appellant’s acknowledgement of the statement before the magistrate, to which the constable testified, it was argued that the constable’s testimony could only mean that the interpreter James Ogbei said to the magistrate that the appellant acknowledged the statement as correct, and therefore the constable’s testimony was mere hearsay.

Pushed to its logical conclusion, this last argument would nullify trials with interpretation. A magistrate or judge often hears a case with an interpreter and relies on the interpretation for his notes of evidence. If, for example, a person who had testified before the magistrate were to die before the trial, his deposition would be received as evidence. The constable’s evidence of the acknowledgement was certainly receivable as evidence. It came out in cross-examination by defence counsel, and no objection to its validity can be made. Learned counsel has observed that the magistrate’s notes were not in evidence, and argued that the trial judge should not have referred to them. The judge merely observes that those notes confirm the constable’s evidence on the point: in other words, there was no reason to disbelieve the constable, partly because of that and partly because the appellant in his evidence did not contradict the constable.

It is not our impression from reading the judgment that the trial judge relied on the statement only: what he did was to consider (to quote his language):-

“in the face of the evidence whether the accused killed the deceased as contained in his statement . ..or whether the deceased met his death during a fight with the accused in his farm.”

He winds up his judgment with the words “considering the whole evidence”, but impression is that he discards the story of a fight at the farm and decides that the killing was done as described by the appellant in his statement in these words:-

“I waylaid him in our bush path and cut him at the back of the neck with my matchet.”

The medical evidence makes it clear that it was a blow from behind received unawares, and the other evidence, undisputed by the defence in the course of the prosecution case, is that the blow was given near the appellant’s house.

That being so, the other ground of appeal, that the trial judge should have taken the words of the appellant, “God took this matchet and wounded the deceased”, not literally but as meaning that he was pleading misadventure, accident, provocation, or self-defence-this other ground is merely academic. It is enough to say, in regard to provocation, which was the major plea before us, that the appellant had plenty of time during a whole night for his passion to cool, and cannot plead the quarrel of the previous day as provocation.

Before closing this judgment we, too, should like to say that it is always wise to call the person who interpreted at the taking of an accused person’s statement to the police, to verify it when tendered at the trial. It would also be useful if the witnesses who know the person on trial were asked to say whether he is right-handed or left-handed. We also think it is too much to expect of most people to know the exact meaning of a doctor’s technical terms of anatomy. The wise course is, after making a note of his technical terms, to ask him to show on the body of (say) the court orderly where the wound was and what it was like, and then make a note in simple, everyday English of the demonstration. In the present case the typed copy of the record speaks of “the stermoniastoid muscle”, which is a mistake for “the stermoniastoid muscle”; there is the wife’s evidence that it was a big wound running from the back of the head to the side of the face, which is a good description in plain English of the doctor’s technical terms.

There is one more point. It seems that the magistrate asked the appellant, when his statement was read over to him and interpreted in his dialect, whether he admitted it. In our view it is better not to ask that question, but leave it to the accused person to cross-examine about it if he wishes, or speak about it when he is called upon at the end of the depositions for the prosecution, and then what he says can be given in evidence at the trial: section 314(2) to (4) of the Criminal procedure Act.

We note once more that it was counsel for the defence who brought out, in his cross-examination of the constable, the fact that the appellant had acknowledged his statement before the magistrate, and repeat that the appellant cannot complain in that regard.

Other Citation: (1965) LCN/1238(SC)

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