Sunday Njokwu Vs The States (2013)

LAWGLOBAL HUB Lead Judgment Report

WALTER SAMUEL NKANU ONNOGHEN, J.S.C.

This is an Appeal against the Judgment of the Court of Appeal, Benin Division in Appeal No. CA/B/83c/2007 delivered on the 4th day of March, 2010 in which the Court dismissed the Appeal of the Appellant against his conviction and sentence to death by the Delta State High Court, Issele-Uku Judicial Division in charge No. HCI/3c/2000.

The Appellant was charged with the offence of murder punishable under Section 319(1) of the Criminal Code, Cap. 48 vol. II, Laws of the defunct Bendel State in that on or about the 4th day of March, 1998 at Idumunel Quarters, Issele-Uku within Issele-Uku Judicial Division, he murdered one Bartholomew Ivo.

The facts of the case, as can be gleaned from the record, include the following:-

On 4/3/98, one Bartholomew Ivo went with his fellow townsmen from Ohazara town, Ebonyi State who settled in Issele-Uku town, Delta State to console the Appellant over the death of his two year old son and assist in the burial. The Appellant and his townsmen belong to the same town association with the deceased.

During the burial, there was an alleged misunderstanding between the Appellant, his wife and the deceased arising from a previous action of the deceased by allegedly throwing charms at the Appellant with a curse that the Appellant’s two sons will die; that it was the night following the incident that the two year old boy died in a mysterious circumstance.

It is in the above circumstance that the deceased is alleged to have taunted the Appellant during the burial activities by saying “I think I told you that you will see,” and making jest of the Appellant by placing his fingers on his eyes as a result of which the Appellant went into his room, brought out a cutlass/matchet and struck the deceased on the head and stomach and the deceased collapsed and was rushed to hospital at Issele-Uku but later transferred to the General Hospital, Asaba, where he later died on 9th March, 1998. The Appellant was arrested and charged with the offence of murder and he volunteered a statement in which he admitted inflicting the matchet cuts on the deceased. Following his trial, the Appellant was found guilty and convicted of the offence of murder and sentenced accordingly.

Being dissatisfied with the Judgment, the Appellant appealed to the Court of Appeal, Benin Division in Appeal No. CA/B/183c/2007 which Appeal was dismissed by the Court in a Judgment delivered on the 4th day of March, 2010 resulting in the instant further Appeal to this Court. The issues for determination which have been identified by learned Counsel for the Appellant in the Appellant’s brief deemed filed on 26/5/11 and adopted in argument of the Appeal on the 8th day of November, 2012 are as follows:

“(i) Whether the learned Justices of the Court of Appeal were right in affirming the trial Court’s conviction and sentence of the Appellant to death for murder on the grounds that the prosecution established its case against the Appellant beyond reasonable doubt

(ii) Whether from the oral and documentary evidence adduced by both parties, the Appellant is not entitled to the defence of provocation; so as to enable him canvass the defence before the Supreme Court for the first time”

A.A. ADEDEJI ESQ, Counsel for the Respondent also identified two issues for determination in the Respondent’s brief deemed filed on 14/3/12 which issues are crafted as follows:-

“1) whether on the totality of evidence adduced, the learned Justices were right in holding that prosecution proved the case beyond reasonable doubt

2) Whether the defence of provocation availed the Appellant on the facts and circumstances of this case”

Looking closely at the issues formulated by both Counsel, it is clear that they are the same though the ones formulated by learned Counsel for the Respondent are more to the point and very apt.