Karibi Nunyiewa Vs The State (1972)

LawGlobal-Hub Lead Judgment Report

GEORGE B. A. COKER, JSC

The appellant in this case has appealed to this court against his conviction by the High Court, Port Harcourt (Wai-Ogosu, Ag. J.) of the murder of one Osiga Nwine. One of the eye-witnesses to the killing of Osiga Nwine was Lebia Maebu, a sister-in-law of the appellant. According to her, on the day of the incident she was in her house with one Kuku Nwine, the appellant and Osiga Nwine (later deceased). The appellant was eating a meal when Osiga Nwine insisted on eating with the appellant.

This was resented by the appellant and as Lebia Maebu observed this, she provided Osiga Nwine with his own food. Osiga ate part of his own but later suddenly left his own food and went over to the appellant again insisting on eating with the appellant his own (appellant’s) share of the food.

The witness stated that at this stage she advised Osiga Nwine to leave the appellant alone to his meal but Osiga did not heed the advice. Instead, he carried the plate of food away from the front of the appellant and both of them struggled to partake of the food on the plate. In the course of this struggle, Osiga Nwine threw the soup at the left leg of the appellant.

What happened thereafter is best said in the words of the witness herself who testified further thus:-

“The accused attempted to dip the ball of foofoo again the second time when the deceased poured the soup on the left leg of the accused. The accused therefore got up; I held him; but he asked the deceased why he was treating him thus like a child. He held the deceased by the neck and pushed him against the wall near to the door.    I tried to pacify the accused and to dissuade him from pursuing with his annoyance and suggested to him that I would provide him with soup to finish his food and soap and water to wash away the mess on him. When the accused pushed the deceased to the wall he knocked him down and trampled him on his neck. The deceased died on the spot. The accused did not heed my entreaties, and I even held him by the waist. There was no fight between them, not even an exchange of blows. I shouted when I saw this and other people came.”

This story of the killing was also told by another witness, Kuku Nwine who had been invited to her home by the witness Lebia Maebu. Kuku Nwine testified to the action of Osiga Nwine in forcing himself upon the appellant repeatedly to eat out of the food of the appellant and the struggle that followed thereafter. She stated, inter alia, that:-

“Then holding on to one of the hands of the deceased and with the other hand on his leg he knocked the man on the ground on his neck. Then he kicked the deceased on his stomach. When the deceased was thus knocked he hit his forehead on the ground. Blood flowed out of his nose; and he died immediately.”

A police constable, P.C. Brierly Josaiah, who was invited to the scene, met the appellant in the house of one Chief Douglas “being guarded by the natives”. He later saw the corpse of Osiga Nwine with a deep punctured wound on the forehead. According to the deposition of Dr. Wafaie Wadoud, who performed the post-mortem examination on the corpse of the deceased (but was not available to give oral evidence at the trial) it seemed that the assault on the deceased took place whilst he was eating a meal. The doctor also stated that there was morbid contusions and lacerations all over the body and bleeding from the nose and mouth was very severe. He thought that the deceased died as a result of internal haemorrhage and shock which could have been the result of a direct hit on the face and that injuries on the stomach could have been as a result of a kick on that part of the body.

After his arrest, the appellant made a statement to the police and the statement was admitted in evidence at his trial as Exhibit “1”. In it he described how Osiga Nwine had tried to deprive him of his own share of food at the party and the struggle that ensued over the removal of the food plate that was before him by Osiga. He further stated:-

“After finishing his own he came to our own table and told me to get up and not to eat anymore, there as I was about to swallow the last one in my hand, he the deceased immediately carried the plate of soup and poured on my right hand. I then held the hand of the deceased Osiga Nwine (m) and asked him why he has done so. He did not say anything. He there resisted from my hand, later fell down with the force he applied. He immediately died on the very spot.”

At the trial, the appellant gave evidence in his defence stating that he adopted his written statement, Exhibit “1”, as his testimony in court. In the course of his cross-examination he stated as follows:-

“It was then that I got up and held him, then we fought because I was annoyed. We fought with our hands. We exchanged blows in the course of the fight. We did not exchange blows for long when deceased fell down and died.”

In his address to the court, learned counsel for the appellant stressed the plea of provocation and submitted that in the circumstances of the case the defence of provocation should be considered as established.