Pullen Osadiaye V. The State (1977)

LawGlobal-Hub Lead Judgment Report

FATAYI-WILLIAMS, J.S.C. 

In the High Court of Bendel State sitting at Benin City, the first accused, now appellant, was convicted of the murder of one Baby Eweka. Originally, three other persons were charged with the appellant.

After the close of the case for the prosecution however, the learned trial judge held that no case had been made out against them sufficient enough to warrant calling on them for their defence. He accordingly discharged them leaving only the appellant to defend there was a sex orgy during which the boys had sexual intercourse with the two girls in turn. After the sex orgy, Magdaline became dizzy. She then described what followed as follows:

“Accused 2 (Samuel) went and bought two tins of milk and gave me one and gave one to the deceased. We drank all. The deceased and I got up and went home. I don’t know how I got home. I discovered the next morning at about 8 a.m. that I was in my home. That morning my sister was vomiting. My relations and I took her to hospital where she died.”

In answer to a question put to her under cross-examination, Magdaline said that it was Samuel who actually bought the tablets but that it was the appellant who gave her one tablet and the deceased three tablets.

On their way home, the two girls ran into Julius Ohonba (P.W.6) who is the brother of Magdaline and a cousin of the deceased. P.W.6 asked Magdaline where they were coming from and she replied that she had been out with the deceased. She did not say anything either about the sex orgy or about the tablets, not even about how the deceased was behaving.

Sunday Odulade (P.W.4) who lived in the same compound as the appellant, is a trader in patent medicines. He said he was in his shop on 23rd November, 1973 at about 8 p.m. when the appellant came to buy two tablets of “madras”. After paying 20 kobo for each tablet, he collected the two tablets and left. When questioned by the learned trial judge about the effect of the tablet on those who take it, the witness replied:

“I do not know if madras is a poison… I do not know what madras tablets do.”

Under cross-examination he explained further as follows:

“This was the first time Accused One bought madras tablets from me. I don’t know if people who have severe headaches use it.”

Dr. John Aideyan (P. W.1), the doctor who performed the post mortem examination on the body of the deceased, testified as follows:

“There was a posterior laceration of the vagina and vulva associated with haemorrhage and blood clots in the vagina. The above is consistent with excessive shearing force (that is movement in and out of the vagina) causing a combination of imparted and distentional laceration and contusion of labia, vulva and vagina.”

After stating that the deceased also had generalised peritonitis and that the probable date of death was 26th November, 1973, he went on to express the opinion that death was due to respiratory depression associated with shock. In answer to a question asked by the Court, the doctor replied:

“The severe attack could not cause death but peritonitis could. ”