Osita Emordi V. The State (2000)

LawGlobal-Hub Lead Judgment Report

IKONGBEH, J.C.A.

The appellant and his younger brother and younger sister were tried before the Imo State High Court sitting at Owerri for murder. The two brothers and their sister were alleged to have murdered one Nicholas Ojunkwu. The prosecution called 7 witnesses. Only PW1 and PW2 were eye witnesses. The defence called three.

The case for the prosecution, as put forward by PW1 and PW2, was as follows: On the fateful day PW1, a boy of 10, went out into the street with his ball to play. As he bounced his ball around, waiting for his playmates to show up, the 2nd accused came along and took the ball from him. He pleaded repeatedly but unsuccessfully to have his ball back. Instead of letting him have it back, the 2nd accused cut it up with a knife he had. To add insult to injury, the 2nd accused slapped him and brought him down with a kick to the legs. He pressed him to the ground and threatened to cut him with the knife. This made the boy to cry out in alarm. This in turn drew the attention of the boy’s elder brother, the deceased, and his sister, PW2, who both ran to the rescue. The deceased got to the scene first. He was trying to pry his brother out of the assailant’s grip when the latter stabbed him on the right shoulder and took off in flight for home. The deceased and his sister PW2 gave chase. The 2nd accused ran upstairs followed by the deceased. At this point, the 2nd accused came out of their room and got hold of the deceased. Almost immediately, the appellant, who was the 1st accused at the trial came out and stabbed the deceased in the chest, leaving the knife buried there. He and his sister, the 3rd accused, then ran back into their room. As the deceased tried to talk in reply to his sister, PW2, blood gushed out of his mouth and nose. He died on the way to the hospital.

The story as told by the appellant in the court below was this; his attention was drawn by a commotion outside. He came out of his bedroom where he had been reading to discover that it was his younger brother, the 2nd accused, who was fighting a small boy (PW1). He made peace between them and went back to his reading.

Shortly afterwards, the 2nd accused rushed into the room, slamming the door behind him. Almost immediately, the door crashed open and the deceased charged in, demanding the whereabouts of the 2nd accused who had taken refuge in another room. As the deceased did not get the answer to his inquiry he set upon the appellant and a fight ensued between the duo. The appellant managed to push his adversary, and the fight, out into the sitting room. The deceased’s younger sister, PW2, was in the sitting room. The deceased called on her to fetch the knife he had in his pocket for him. She did and he tried to stab the appellant with it but was blocked by the latter. In the fight and the struggle for possession of the knife, they fell and rolled a number of times. At one point, the deceased stopped fighting and the appellant saw blood coming out of a wound on the right side of his chest where he also saw the knife sticking out. The deceased pulled out the knife and ran out of the room. PW2 picked the knife and ran after him. He followed them downstairs where he saw the deceased still bleeding. On the advice of those who had gathered, he went and reported the incident to the police.

In his judgment delivered on 7/10/98, the learned trial Judge (E.O. Metu, J.) discharged and acquitted the 2nd and 3rd accused persons. He however convicted the 1st and sentenced him to death.

Aggrieved by his conviction and sentence, he appealed to this court on four original grounds. With leave of the court, five additional grounds were filed. Mr. C.A.C. Anyanwu, who prepared the appellant’s brief of argument formulated six issues for determination:

“A. Whether there was a fight between the deceased and the appellant before this unfortunate incident.

B. Whether the deceased chased the 2nd accused (Ikechukwu Emordi) into the appellant’s room.

C. Whether the learned Judge properly evaluated the evidence of the parties before coming to the conclusion that the appellant murdered the deceased.

D. Whether the appellant raised the defence of self-defence and or provocation at the trial.

E. Whether the P.W.6 (Dr. Idoko) is qualified as a pathologist to give evidence of cause of death of the deceased.

F. Whether Exhibit ‘8’ is the knife which featured between the appellant and the deceased.”

Mrs. C. C. Dimkpa, Principal Legal Officer, Imo State, filed a respondent’s brief in which she formulated three issues: