Ofoke Njoku Vs The State (1993)

LawGlobal-Hub Lead Judgment Report

BELGORE, JSC.

The appellant, a housewife, was tried and convicted under S. 319 (1) of Criminal Code Law of former Anambra State for the murder of her husband, Njoku Igboke. The trial took place at Abakaliki Judicial Division. The prosecution’s case was that on the 29th day of December, 1977 at Amagu Izzi the deceased arrived home from the market and asked for his supper which the appellant gave him. He complained that the fish in the stew was full of bones and implying it was not good.

It would seem he made a big issue of it but the appellant apologised and promised to get better fish to cook next time. At the time he came home their son, Njoku Igboke, 18 years old, had just finished eating his own meal. So he was around when his father the deceased, complained that his stew was full of fish bones rather than fish and in the words of the young man (who was P.W. 1) “he protested that only fish bones were in his soup and blamed the accused for not recognising his status as the head of the family.” He threatened to discipline her.

The deceased, the appellant and P.W. 1. then retired to the same apartment to sleep for the night. P.W. 1. then claimed he was on the same mat with his mother while the deceased was on another one opposite them. Here the divergent stories started. The prosecution’s case was that the deceased had just slept when the appellant picked up a pestle with which they normally wedged the door and with it dealt three blows on the deceased’s head. The deceased groaned, stretched his legs and then became motionless. At the time of the attack the deceased was facing away from the appellant and P.W.1, and had his hands under his head with his matchet that he customarily kept by his side. The appellant picked up the matchet of the deceased and ran out and away. According to P.W.1., the incident occurred around 9 p.m.

The appellant’s story in defence as told by her in her voluntary statement to the police and as P.W.4, Nwazufu Erinye, a neigbour, said she told him was that because of the heated argument on the stew full of fish bones rather than fish, he threatened he would kill her bringing out his matchet which he kept by his side. Although, in her voluntary statement, Exhibit C, she said as follows:

“…….. I told him to forgive that the following day I would buy another fish to cook for him. He said both of us would die. He then took his matchet to cut me, I quickly went to a comer of the house, got hold of a pestle, I gave him two hits by side of the head and he fell down and died ……… My son named Igboke Njoku was at home during the incident.” When P.W.4, who was the village councillor, went to the house of the deceased, he saw the deceased lying on a mat with his two hands clasped under his head with extensive flow of blood. The medical report of the autopsy Exhibit D says inter alia as follows:

“A 4 cm vertical laceration wound (sic) surrounded by a marked scalp contusion of the left side on the scalp behind the right ear and covered with ………………… blood. Depressed fracture of the frontal bone on the left side. Extradural haemorrage on the left side of the anterior crarial tossa.

I certify the cause of death in my opinion to head injury.” Though the appellant in her evidence on oath in court elaborated fully her version of what happened, it is not much different from her voluntary statement. She agreed her attack on her husband killed him but she claimed she did so in self defence.

Learned trial Judge preferred the version of the P.W. 1, the son of both the deceased and the appellant; that is to say the deceased had gone to sleep on the mat when stealthily the appellant from the back rained blows on his skull with a pestle. He disbelieved the story of the appellant that she pre-empted the deceased attacking her with a matchet as he threatened, he rather found the appellant rashly rushed at the sleeping deceased and smashed his skull. The Court of Appeal refused to interfere with the decision and dismissed the appeal lodged by the appellant and this led to this appeal.

The only question advanced as an issue for determination in the appellant’s Brief runs as follows:

“………….. whether the evidence adduced at the trial was sufficiently cogent to discharge the burden beyond reasonable doubt.”

Seyi Sowemimo, Esqr, of counsel, for the appellant, in a well written and researched brief of argument, argued that the appellant’s main contention of self-defence was not adequately considered and cited circumstances in the case of Grace Bonis v. The State (1971) All NLR 334, 337 where the evidence of the appellant that she was held by the throat was not considered. In the instant case, learned trial Judge thoroughly assessed all the evidence in the case both for prosecution and for defence and came to the conclusion that he believed the evidence of P. W. 1., the son of the deceased and the appellant, and that he never believed the deceased was about to attack the appellant. Exhibit 1 is a confession not as to guilt but as to why she attacked and that she indeed used the pestle to smash her husband’s head. The Court of trial believed and held she was not about to be attacked with matchet by the deceased. What he believed was the P.W.1’s evidence that it was the practice of the deceased to sleep with the matchet by his side at night.

Counsel for the defence raised a lot of dust on Court of Appeal not frowning on the trial Judge’s findings that “the accused was tired of her husband. There was a design to effect death which was achieved in a cruel manner with a dangerous weapon” and

“The accused did not suggest that the husband was not of good character of even temper and quiet disposition. She did not say he was a drunkard and that she lived in terror of him. They did not live in a state of unhappiness”