Ominyi Ogeikpa V. The State (1972)

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G. S. SOWEMIMO, Ag. J.S.C.

The appellant was convicted and sentenced to death on a charge of murder at the Abakaliki High Court in the East Central State on 16th August, 1971 by Anya, J. He appealed to this court against his conviction. The appeal was heard on 29th November, 1971, and was dismissed. As we indicated then we now give our reasons for dismissing the appeal.

The case for the prosecution was that on the 23rd of July, 1970, Ominyi Okpete, Romanus Nwanyi (P.W.2), Nwaigwe Nkwuda, (later deceased) and the appellant met in the house of one Nkwuda Nwite. They were invited there along with others to join in some merriment with Nkwuda Nwite, on the occasion of the return of his son from Fernando Po.

After staying there for some time, P.W.1, P.W.2 and Nwaigwe Nkwuda left the house of Nkwuda Nwite. On their way back to the village, Nwaigwe Nkwuda suggested that they should call at the house of One Igwe Ogeikpa, whom he referred to as his uncle, to have some food. On getting there they met Igwe Ogeikpa ill and lying down. Nwaigwe Nkwuda left P.W.1 and P.W.2 and proceeded to the apartment of one Nkwoagu Ogeikpa. Igwe Ogeikpa is the father of the appellant and husband of Nkwoagu Ogeikpa, and uncle of Nwaigwe Nkwuda.

Prior to the 23rd July, 1970, when the incident which resulted in the death of Nwaigwe Nkwuda took place, the relationship between the appellant and Nwaigwe Nkwuda was strained. There had been some misunderstanding and some exchanges of insults between the two of them.

As stated before, on the material date Nwaigwe Nkwuda went to the premises of Nkwoagu Ogeikpa. A little while later, the appellant went to the house of his mother. He later emerged armed with a matchet and proceeded to the apartment of Nkwoagu Ogeikpa. There he met Nwaigwe Nkwuda, who was also carrying a matchet. A quarrel ensued between them. On hearing the cries of some children, P.W.1 and P.W.2 went to see what had happened. They saw Nwaigwe Nkwuda and appellant quarrelling and they separated them. The appellant then complained that he had previously warned Nwaigwe Nkwuda never to come into his father’s compound. He was however persuaded by P.W.1 and P.W. to leave matters and they and Nwaigwe Nkwuda later left the compound.

P.W.1, P.W.2 and Nwaigwe Nkwuda proceeded together to their houses. Nwaigwe carried the matchet which had been in his possession since they met in the house of Nkwuda Nwite early that day. On getting to a junction on the road leading to their compound, P.W.1 and P.W.2, who were in front, noticed that the appellant was coming behind them. Nwaigwe Nkwuda was at the rear. The appellant caught up with them and said he would not allow Nwaigwe Nkwuda to go away. In spite of the intervention of P.W.1 and P.W.2, the appellant struck Nwaigwe Nkwuda with his matchet and gave him a cut on the calf of his left leg which later proved fatal. Nwaigwe Nkwuda then retaliated and gave the appellant cuts on his forearms. P.W.1 and P.W.2 then raised an alarm and took to their heels as they were unarmed. They reported what had happened to the mother of the deceased and in consequence of this, one Paul Nkwuda, a half brother of Nwaigwe Nkuda (now deceased) and the P.W. 5 went to the sport where the incident took place and saw the body of Nwaigwe Nkuda lying on the ground. He was dead. A report was lodged with the Police and the corpse of Nwaigwe Nkwuda (deceased) was removed to the General Hospital Abakaliki.

Dr. Chukwurah Okafo, the 3rd P.W. performed a post morterm examination on the body of the deceased on 27/7/70. In his evidence he stated as follows-

“I found as follows-

1. The Death had occurred between 4 to 7 days previous
2. Extensive and deep laceration of the back of left knee with damage to muscles, blood vessel and nerves.
3. No apparent fracture nor fractures.

The body was in between incipient and advanced stage of decomposition. I certified the cause of death in my opinion to be uncontrolled external haemorrhage and shock. etc. etc.”

He also gave evidence of his findings on an examination of the appellant. He stated thus-

“On the same date I examined Ominyi Ogeikpa aged about 30 years and male. He had linear and deep lacerations of right and left upper arms – each approximately 1 1/2 inches long and 1 inch deep respectively. There were no fractures and arm movements were good.”

The appellant gave evidence in his defence at the trial. His own version of the incident was that on the material date he met Nwaigwe Nkwuda (deceased), Romanus Nwanyin and two others in their compound requesting for food from one of his father’s wives – Nwoagu Ogeikpe. The women had no food and the appellant asked the four persons to come to his apartment where he would provide them with food. It was not in dispute that at that time the appellant regarded the deceased as his enemy. The offer to provide food by appellant was refused and instead the deceased and the three others insisted on getting food from his father’s wife – Nwoagu Ogeikpe. He, the appellant, repeated his offer to the deceased but again they refused. There and then the appellant ordered them to get out of the compound. At this stage the deceased threatened to injure the appellant, but the latter begged him and the three others to leave him alone. According to the appellant, in spite of his begging, the deceased gave him a matchet cut on his left upper arm and he retaliated by striking the deceased with his matchet. Romanus, P.W.2 then gave him a matchet cut on his right upper arm nearer to his shoulder. The appellant said he ran away from the scene and later went to report himself to the police. He did not however give the reason why he went and surrendered himself to the Police.

In his statement to the Police Exh. B (English translation Exh. B1) which the appellant adopted as part of his defence, he narrated how during the period of a year before the incident of 23/7/70, the deceased had been “pouring” insults on him and at times challenged him to a fight. He avoided being involved in any scuffles with the appellant and reported him to several people. In spite of these reports, the deceased continued to molest him. On the day in question, the deceased along with three others came to his father’s compound to ask for food from Nwoagu Ogiekpe, a wife of his father. The woman said she had no food to offer them. The three others were Romanus Nwanyi, P.W.2, Ominyi Nwibo, and Ominyi Epete – P.W.1. Appellant further stated in Exh. B1 thus –

“As they were discussing this, I came out and told them to come and take food. Having said this Nwigwe warned me not to say that again or else he will matchet me. I told them to go away from my father’s compound and they refused. It was that time Nwigwe took his matchet and hit me for the first time. He repeated the second time and on the third one he gave me a matchet cut on my left elbow and all of us started fighting. During the fight I gave him a matchet cut on the leg and he fell down and many people rushed to the scene. xxxx

It was when we were fighting, that Romanus gave me a matchet cut on my right below then I dropped my matchet and ran away, and they chased me. I did not come back to my father’s compound again, from there I went to Abakaliki and reported myself to the Police and I was arrested. I left my matchet at the scene when I was running away.”

The learned trial Judge considered all the aspects of the case including the version of the incident as given by the appellant. He concluded thus-

“I am afraid I do not believe the accused.

He next considered the defences of provocation and self defence as urged upon him by learned counsel for the accused. He rejected both defences. In his judgment the learned trial Judge stated –

“In this case, assuming that the mere presence of the deceased in the compound constituted sudden provocation the accused did not act in the heat of passion. He requested the deceased to leave his compound. The deceased left the compound. The accused then later went after the deceased and killed him on the road. His passion ought to have cooled when the deceased left the compound, but did not. In conclusion I do not see any defence of self-defence or provocation in this case. I am satisfied on the evidence before me that the accused killed the deceased with malice aforethought.”

In our view, having accepted the version of the incident as given by the prosecution witnesses and rejected that of the accused, the learned trial Judge could only have come to the conclusion which he did, that the killing of the deceased by the appellant was a deliberate and unlawful act.

Mr. Akinrele, the learned counsel assigned to argue this appeal said that after he had considered the proceedings and judgment of the learned trial Judge, he had nothing to urge in favour of the appellant in this appeal.

We had ourselves considered the case as presented in the lower court and the judgment of the learned trial Judge and we were satisfied that there was nothing to justify any disturbance by us of the verdict in the case. We were satisfied that the appellant killed the deceased and the killing was neither justified nor excused by law. We therefore uphold the verdict of the learned trial Judge and dismissed the appeal.

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Other Citation: (1972) LCN/1539(SC)