Nwibo Nkwudu Ovuji V. The State (1972) LLJR-SC

Nwibo Nkwudu Ovuji V. The State (1972)

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G. S. SOWEMIMO, AG. J.S.C. 

This appeal was heard on 29th November, 1971, and was dismissed. We now give our reasons for so doing.

The appellant was convicted of the murder of one Adaka Imafu and sentenced to death on 7th September, 1971, at the High Court, Abakaliki, by Anya, J.

The case made out in the High Court as accepted by the learned trial Judge, was that on the night of 27th of November, 1970, one Adaka Imafu (later deceased) was in the apartment of his wife, Nkwoagu Adaka (P.W.2) where he had gone to pass the night. The appellant later that night went to Nkwoagu Adaka’s apartment and knocked at her door. The deceased and his wife woke up and the appellant on being asked the object of his mission said that he had come to deliver a message to Adaka Imafu. He (Adaka) got up from the bed and proceeded to open the door for the appellant. He was followed at a distance by his wife Nkwoagu Adaka. On opening the door, the appellant struck Adaka Imafu with a matchet on the front part of the head, and he fell down. The appellant ran away. This was witnessed by Nkwoagu Adaka (P.W.2) who raised an alarm. As a result of the alarm some people including Nwogbaga Ali (P.W.1) who was a brother of the deceased came to the scene.
The 1st P.W. gave evidence that he came to the scene and met his brother, Adaka Imafu, with a wound on the head. He was then alive. As a result of what he was told, some soldiers whom he met on his way to the Police Station, followed him to the scene and later went to look for the appellant but could not find him. On their return to the scene he found that his brother Adaka Imafu had died. The corpse of his deceased brother was later conveyed to the Police Station, Abakaliki  and from there to the General Hospital where a post mortem examination was performed by Dr. Chukwurah Okafo, the 6th P.W. who in his evidence stated –

“I  found as follows –
1.     Death had occurred about 27/11/70.

2.     Approximately 2″ long compound fracture of right frontal skull and exposing the meninges but not brain matter.

3.     Other systems appeared normal.”

In my opinion death was due to intracranial haemorrhage. A sharp edged instrument e.g. matchet used with maximum degree could have caused the injuries found.”

The defence of the appellant was that the injury which resulted in the death of Adaka Imafu was the result of an accident, and that the injury was caused during a struggle over a matchet then in the possession of the appellant. In the English translation of his statement made on 28/11/70 and tendered in evidence as Exh. CI, which the appellant adopted as his defence at the trial, he stated thus-

“It was under the influence of alcohol that I went and touched the door of the house of Adaka Imafu’s wife called Nwoagu with the knife which I borrowed from Nwoagu Oshinm. I did not know that her husband was there. I did not go there to sleep with the woman because her child had recently died. I had been in love with Nwoagu since last year. When I touched the door, Adaka Imafu rushed outside and met me. He said when he came out that I came to have sexual intercourse with his wife Nwoagu. I was sitting down at the door way when he came out. He held me and started beating me. I did not do him anything. He then started to take my knife from me and he succeeded to take the scarbbard. When he wanted to seize the knife from me, we started to struggle for it. It was that time that I pulled the knife by force and the knife hit him on the face. He left me and raised an alarm.  I then ran.”

Under cross- examination in court he stated as follows:

“It is true that over one year and up to the date of the incident I was in love with the P.W.2 but I never had an affair with her. xxxx
I visited P.W.2 regularly. Never did any four days pass without my visiting her. The deceased was never worried about my visits to P.W.2. In the night of the incident when I went for the P.W.2, the door of the house was shut. I knocked at the door. The deceased woke up and opened the door. I was not surprised to find the deceased in the house of P.W.2, because I had been going there and meeting him there. It was a dark night but not so dark. When the deceased opened the door and came he slapped me. He held me on my right wrist. I had my matchet which was in its sheath. I drew the matchet and the deceased who was holding on to the sheath found himself having only the sheath. As I drew the matchet it fell on his face by accident. When the deceased slapped me I was surprised and asked him why he did so. He said I had come to have an affair with his wife P.W.2. I am under no illusions as to what happened that night.”

None of the allegations contained in the statement of the appellant to the Police Exh. C1, and in his evidence in court were ever put to P.W.2 when she gave evidence. Her evidence that there was no struggle before the appellant inflicted the injury on her husband, Adaka Imafu (the deceased) was not even challenged. The learned trial Judge in his judgment, after describing the nature of the injury as given in evidence by the doctor (P.W.6) stated –

“The doctor’s finding, it seems to me, would be otherwise, if the matchet (Exh. ‘B’) struck the deceased accidentally when pulled by the accused towards himself.  The doctor’s evidence appears to me to prove an injury occasioned by a blow carefully and purposely aimed at the deceased and inflicted with considerable force. I hold, that the defence of accident does not avail the accused. xxx  I am satisfied that the accused had been for sometime in illegitimate, if not adulterous, association with P.W.2.  I am further satisfied that in the night of the incident the accused went for the P.W.2 not knowing that the deceased was with her that night in her house.  He knocked at the door and when to his surprise the deceased emerged he gave the deceased a matchet cut in order to escape being caught.  As the deceased died from the injury sustained I have no alternative but to find the accused guilty of murder.”

In our view there was ample evidence to support the above findings of the learned trial Judge. Mr. Akinrele, the learned counsel assigned to argue this appeal said that he had nothing to urge in favour of the appellant. In our view, the appellant was rightly convicted and we dismissed the appeal.

SC.294/1971