John Okoye Vs The State (1972)

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COKER, JSC.

The appellant herein has appealed to this court against his conviction for murder by Oputa, J., (High Court, Onitsha).

He was charged and tried on an Information which alleged that on the 19th March, 1970, at Isuh in the Onitsha Division of the East-Central State, he murdered one Mgbankwo Nwuzo who was his own sister-in-law having been married to a brother of the appellant who died during the recent Civil War.

Six witnesses gave evidence for the prosecution at his trial but only one of them, Agnes Okoye, 2nd P.W., was an eye-witness to the events leading to the death of Mgbankwo Nwuzo. The case for the prosecution is that on the day in question the appellant resented the action of Mgbankwo Nwuzo in hoisting sticks on the ground for the erection of a shed and, as she repeatedly gathered her sticks and tried to put them up again he had pulled them down, the appellant kicked her with his foot on the waist and the stomach and then hit her on the head with a bamboo stick.

Mgbankwo Nwuzo fell down on the spot and died within a few moments thereafter. A local chief – Matthias Maduka, 1st P.W., – testified to the effect that soon after the killing of the deceased, the appellant and one Lawrence Ofurume (3rd P.W.) came to him and reported that the appellant and a woman had fought and the the woman by name Mgbankwo Nwuzo, had died.

The chief also said that he followed them to the place where they said the body lay and saw the corpse of the deceased. Dr. Douglas Ikegwuonu, 5th P.W., had performed a post-mortem examination on the corpse and he gave it in evidence that the deceased had the following injuries:-

“1. She was dead probably two days before the 20th March, 1970.

2. Lacerations were found at the abdominal regions.
3. The rectum was gushing out from the anal region.
4. A lot of clotted blood was observed in the thoracic and abdominal cavities.
5. There was a rupture of the liver at right lobe.
6. Rupture of the spleen was also seen.
7. Fracture of the 7th, 8th, 9th left ribs were seen.”

The doctor thought the deceased had died from rupture of the liver, ribs and spleen and that the injuries could have been caused by the use of a blunt object like a heavy stick used with force or a kick with the foot applied with great force. The appellant made a statement to the Police after his arrest and in that statement he denied having killed the deceased; indeed he said that on the day in question Mgbankwo Nwuzo came out of the house, protested against his own erection of a shed on the spot where it stood and then proceeded to pull down the shed which he, appellant, had already erected. The appellant further stated that he then took her by the hand and led her out of the place; that she came back and continued to pull down his own shed and that he, the appellant, left the spot after he had been advised to do so in order to avoid a quarrel. He further stated that he learnt later that the deceased had fallen down on that spot and that people were throwing water on her. At his trial, the appellant gave evidence in his own defence. He told more or less the same story as contained in his statement to the Police and admitted that he was aware that Mgbankwo Nwuzo was generally known to be subject occasionally to fits of epilepsy.

As stated before, the only eye-witness to the killing of the deceased was Agnes Okoye a daughter of the deceased. She was at the time of giving evidence in this case a school girl and was only some 13 years old. The records show that when she was called into the witness box she was sworn on the Bible and thereafter proceeded with her evidence even though the learned trial Judge observed and noted on his records that she was a young girl of about 13 years. In his judgment, the learned trial Judge accepted her testimony and rejected the story of the appellant, although it is fair to observe that the learned trial Judge also looked for and found other materials which tended to make her own story more probable. On these facts, the learned trial Judge convicted the appellant of murder and sentenced him to death.

He has now appealed to this court against that conviction and the only ground of appeal argued on his behalf reads:-

“That the learned trial Judge erred in law in failing to make a preliminary inquiry as to the competence of the 2nd prosecution witness to give evidence on oath and thereby came to a wrong decision.”

Learned counsel for the appellant argued that the learned trial Judge should have complied with the provisions of Section 182 of the Evidence Act by making and recording a preliminary inquiry and that his failure to do so vitiates the evidence of the 2nd P.W., Agnes Okoye and that since that was the only evidence against the appellant there should have been a direction to the effect that there was no evidence or no sufficient evidence to sustain the charge. On the other hand, learned State Counsel for the respondent argued that there was no duty on the learned trial Judge to hold a preliminary inquiry before allowing the witness to give evidence since, as State Counsel submitted, Section 182 of the Evidence Act does not so prescribe; that the provisions of Section 149(1) of the Evidence Act apply and that in any case this is a proper case and occasion to apply the provisions of the proviso to Section 26(1) of the Supreme Court Act.

It was also urged in argument by learned counsel for the appellant that by virtue of the provisions of Section 2 of the Criminal Procedure Act, which states that a “child” means any person who has not attained the age of 14 years, the girl Agnes Okoye was a child within the meaning of Section 182 of the Evidence Act. We entertain some doubt as to whether or not the definition of child in the Criminal Procedure Act does not necessarily carry the same connotation in the context of Section 182 of the Evidence Act, but the point is immaterial to our present decision since it must be generally accepted that a boy or girl of the age of 13 years must be considered a child. There are on the statute books a large number of statutes concerning children and many of them, if not most, do carry relevant definitions of the word “child” or cognate expression like “children”, “childish” or indeed “young persons” and in those circumstances except there be a general definition provided by a statute of interpretation, it might be imprudent to lay down any hard and fast rule. PAGE| 4 As Willes, J., observed in Reg. v. Cockerton (1901) 1 KB 322 at pp.340/341, when dealing with the provisions of the Elementary Education Act, 1870- “Except for the purposes of one Act, dealing with compulsory attendance, no definition has been given of a “child”.

It is impossible to lay down any definite boundary as separating “children” from “young men” or “young women”, or any other description by which an advance beyond childhood may be indicated. Practically, I suppose that at somewhere between sixteen and seventeen at the highest an age has been arrived at which no one would ordinarily call childhood.” Section 182 of the Evidence Act is as follows:-