Nworie Nwali Vs The State (1991)

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O. OLATAWURA, JSC.

At the end of the hearing of this appeal on 7th February, 1991, I dismissed the appeal and I adjourned the reasons for the dismissal of the appeal till today. I now give my reasons.

The appellant was charged with murder of one Elizabeth Nwafor contrary to Section 319(1) of the Criminal Code, Laws of Eastern Nigeria, applicable to Anambra State. The particulars of the offence are that on or about 7th day of November,1983, at Ndiggu Okoffia Ezza in Abakaliki Division of the High Court of Anambra State, he murdered the said Elizabeth Nwafor.

He pleaded not guilty.The facts relied on by the prosecution were that the appellant was a boy friend of the deceased who at the time of her death was about 13 years old. That association was in existence for about one year before the deceased met her death in the hands of the appellant on 7th November, 1983. On that fateful day, the appellant who was quite known to the mother of the deceased, went to the house of the deceased. At the time he got there, the mother of the deceased (P.W.3) was already in the bathroom. She heard when the appellant called the name of the deceased. The next thing she heard was the shout by the deceased. She ran out and saw the deceased with matchet cuts.

When the appellant saw P.W.3, he also inflicted some matchet cuts on her. She collapsed. It was in the hospital she regained consciousness. The reasons for this dastardly act would appear to be a refusal on the part of the P.W.3 to allow the appellant bring palm wine to the family of the deceased. The refusal by P.W.3 was based on the fact that the love affair between the deceased and the appellant was not yet made known to the father and male members of the family. This did not go down well with the appellant.

As a result of the death of the deceased, a report was made to the police. The appellant was arrested. He made a statement to the police. The Ibo version and the English translation of the statement were admitted in evidence and marked Exhibits B and B1 respectively. The appellant gave evidence on oath. His defence was based on provocation and self defence. He agreed that he went to the house of the deceased on 7th November, 1983. On that day, he went there with palm wine. It is significant that he admitted he went alone. P.W.3 then asked him why he brought the palm wine. He reminded her that she asked him to bring the palm wine. P.W.3 denied and gave him the impression that her daughter was no longer going to marry him. No reason was adduced for this change of heart. The remaining part of his defence is as follows:

“At that stage both P.W.3 and the deceased suddenly started attacking me beating with sticks. I fell down on the ground. The deceased ran into the house, brought a matchet and stabbed me on my right leg. At that stage I collected a stick of Indian bamboo, hit the deceased, she staggered and fell on the matchet on the ground. P.W.3 came back and hit me with a piece of Indian bamboo.

I fell down. I got up and was running for dear life when P.W.3 went inside the house and brought a matchet. The deceased ran away into the back yard. P.W.3 wanted to use the matchet on me and I used a piece of Indian bamboo in defending myself and disarmed P.W.3. The matchet she had fell off her hand. I collected a piece of Indian bamboo used on me and used it in hitting P.W.3. I did not make statement to the police. I did not go to school. I never lived at any other place except Okoffia Ezza. I killed Elizabeth Nwafor.

I killed Elizabeth Nwafor the deceased because on 7/11/83 it was P.W.3 who told me to bring wine that she had arranged with the half brothers of the deceased for me to come. It was when the deceased went in and brought a matchet and stabbed me on my right leg, that I took the matchet off her and inflicted a matchet cut on the deceased from which she died. I had no previous quarrel with the deceased and P.W.3 apart from this incident.”

He was cross-examined and he agreed that according to their custom, the male members of the family give out a girl in marriage. He denied that the issue of marriage of the deceased was discussed with the mother of the deceased (P.W.3) alone. Counsel addressed the court. After a careful review of the evidence and the authorities cited in support of the submissions made, the learned trial Judge found the appellant guilty of murder.

He convicted him and sentenced him to death. The appeal to the Court of Appeal was dismissed on 7th December, 1989. The appellant has now appealed to this court. When this appeal came up for hearing on 7th February,1991, Otunba Ajayi- Okunuga, the learned counsel for the appellant who had earlier filed a fourth ground of appeal without leave of the court, sought leave to withdraw the fourth ground. Leave was granted.

The 4th ground was accordingly struck out. The grounds of appeal properly filed before this court are as follows: “(i) The learned Justices of the Court of Appeal erred in law in dismissing the appeal by relying mainly on the English version of the supposed confessional statement by the appellant tendered as Exhibit B contained in the Records when in fact the appellants’ statement made in Ibo language was not pleaded before the court.

PARTICULARS OF ERROR (a) It is clear from the evidence of P.W.6 at page 11 L 20- page 12 L 1-22 that the appellant’s statement was made in Ibo Language and tendered at the trial as Exhibit B, with the supposed English translation thereof as Exhibit B1. (b) Exhibit B the actual statement of the appellant is not part of the records, the only statement contained therein being the English version of that statement – (see page 40). (c) In the absence of Exhibit B, Exhibit B1 relied on in support of the conviction constitute hearsay evidence and a conviction based solely on such evidence cannot stand. (ii) The Learned Justices of the Court of Appeal erred in law in supporting the rejection of the appellant’s plea of self defence, when the findings thereon by the trial court were both unfactual and speculative. PARTICULARS OF ERROR (a) The trial court at page 33 L 16-26 noted the plea of self defence entered by the appellant, but failed to adduce any facts to support his disbelief of the appellant’s story.

(b) Having also found at page 35 L 6-9 that there was no evidence that the appellant came to the deceased residence with the matchet used, that fact ought to have further strengthened the appellant’s plea of self defence. (c) The Court of Appeal merely confirmed the trial court’s rejection of that defence without any examination of the issues raised in that defence. (iii) The decision of the Court of Appeal is unwarranted unreasonable and cannot be supported on the evidence.