Baadon Kpaa Vs The State (1972)

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SOWEMIMO. AG.JSC

The above appeal was heard on the 3rd of February, 1972, and was dismissed. As indicated then, we now give our reasons. The accused, who was the appellant before us, was charged with the murder of one Mbeaga Nafaa on 13th of March, 1970 at Bom Village in the Ogoni District of Port Harcourt.

He was tried at the High Court, Port Harcourt, in the Rivers State and on the 17th July, 1971, he was convicted and sentenced to death by Wai-Ogosu, Ag. Judge. It was against the conviction that he appealed to this court. The appellant Baadon Kpaa was an in-law of one Mbeaga Nafaa (herein referred to as the deceased). The husband of the deceased was the uncle of the appellant.

On the uncle’s death he left behind a farmland which the deceased, as his wife, inherited. It would appear that during the crisis, in what was formerly known as Eastern Nigeria, the appellant and the deceased had to leave their village. The deceased returned to the village earlier than the appellant after hostilities had ceased in the area where the village was situated.

On her return she resumed cultivation of the farmland which she inherited . The appellant on his return to his village from the rebel held area, discovered that, as had happened to everyone who had been forced to run away during the crisis, his house and goods had been looted. He was therefore in dire need for some money. He had assumed, prior to his escape, the headship of his family on the death of his uncle. He therefore sold a portion of his late uncle’s farm, where the deceased farmed, without her knowledge, to one Wikato for money. Wikato is also a member of the family. When Wikato cleared the portion sold to him and planted some crops, he discovered, on a subsequent visit to the farm, that the young crops had been uprooted. He lodged a complaint to the appellant. On the morning of the 13th of March, 1970, the deceased and a cousin of hers, one Salina Nafaa, who was the 1st Prosecution Witness at the trial of this case, went to the farm to collect some vegetables and pepper. Whilst they were there the appellant appeared suddenly from behind, got hold of deceased from behind; he then held her hands outstretched upwards and standing on her legs pulled her up and knocked her to the ground. Whilst the deceased was lying on the ground the appellant kicked her on the stomach until she died. The 1st prosecution witness stated that she shouted when the appellant held on to the deceased and at one stage challenged him as to his action. The appellant’s reaction was to push 1st Prosecution Witness down and whip her. At this time the 1st P.W. was pregnant.

After the appellant had killed the deceased he left the scene. The 1st Prosecution Witness thereafter went to lodge a report to the village Chief, one Vomlu Tenalo, who was the 2nd Prosecution Witness. The Chief sent a messenger to accompany the 1st P.W. to the scene and on his return confirmed seeing the corpse of the deceased at the scene. The head chief then asked the 1st P.W. to lodge a complaint to the Police about the incident. This was done and Police came to the village the following day. Two Policemen who came to the village on investigation visited the scene, and with the help of some villagers removed the corpse from where it was found and took it to the BORI General Hospital otherwise known as Ogoni General Hospital. The medical officer in charge of Ogoni (Bori) General Hospital was one Dr. WAFAID WABOND. He performed the post mortem examination on the body of the deceased on 16th March, 1970. He gave evidence at the Preliminary Inquiry as to his findings. At the time of the trial in the High Court, he was away on four months leave to Cairo and his deposition was therefore admitted in evidence as Exhibit 2. The relevant portion of the deposition reads:- “On 16th March, 1970, the body of an old woman was brought to me for post mortem examination. She was aged about fifty. I performed the post mortem. I found the deceased had severe bleeding from the mouth and nose. There was slight bleeding from the anus as well.

There were abrasions and contusions all over the body and the face. All other cloths’ were intact and no other peculiar marks were noticed. The cause of death in my opinion was shock from internal hemorrhage due to a blow or contusions with a hard object to the chest or abdomen.”Under cross examination, the doctor stated thus:-

“A fall with the back may not result in this massive haemorrhage. If the deceased “had fallen with the back the internal injuries would be different.”

There was some evidence from at least two prosecution witnesses of what appeared as some disturbance on the ground around the place where the corpse of the deceased was found, and which possibly indicated signs of either a struggle or a fight. The statement which the appellant made after his arrest was tendered in evidence as Exhibit 1. Portion of Exhibit 1 reads:- “Before my uncle Napaa the husband of the deceased died he warned that Saina Napaa should not be married but to stay in his house in his name. That farm in which the deceased Mbeaga Napaa planted crops is my farm. It was when I was evacuated by the rebels in the year 1968, the deceased Mbeaga started to plant crops in my farm. On my return home 1970, 15th February, I saw Mbeaga planting crops in my farm. I then warned her not to plant crops because the farmland belongs to me. But the deceased refused to leave the farm for me rather she carried juju to the farm so that the juju will kill me.

On 13/3/70 I went to the farm and destroyed the crops the deceased Mbeaga planted, because I have already pledged that side of the farm to some people for money. On 13/3/70 as I was passing along the foot path, I overheard the deceased Mbeaga saying that if I, Baadon entered in that farm, the juju should kill me. On hearing that I went and met Mbeaga on the farm, she was alone the time I met her in the farm, and challenged her why she was putting juju in that farm. Then the deceased Mbeaga first slapped me, then I slapped her back and the deceased fell down and died but I have no mind of killing her because at that time I have a matchet with me and I have never used it on her. I only slapped her and accidentally she died at the spot. When the woman fell I went home because there was no any other person around there.”

The appellant gave evidence at his trial in his defence. He repeated all the allegations contained in his statement Exhibit 1. According to him the misunderstanding between the deceased and himself arose when she (deceased) refused to relinquish a portion of the farm to WIKATO unless she was allowed to marry out of the family. The appellant did not approve of the condition. Wikato on the instruction of the appellant planted cassava on the portion of the farm but this was later uprooted by someone.

When Wikato complained to the appellant, he went to the farm and found the deceased invoking a juju that he appellant would die. Under cross examination, the appellant admitted that the portion of the land he sold to Wikato was the land where the deceased had previously farmed. He also alleged that the deceased uprooted Wikato’s crops. The learned trial Judge considered the evidence exhaustively and concluded his findings thus:-

“As I have already shown I have every reason to believe that the prosecution witness 1 was present throughout and that her story of the attack on the deceased is true. I believe her when she said the deceased did not slap or attack the accused and that the attack on the deceased was so sudden and unexpected as to leave her no time to effectively defend herself. I believe her story too that in trying to intervene and hold back the accused from beating her mother she herself was beaten back. From a consideration of the whole of the evidence in the case it is clear that the story “I am satisfied that upon a consideration of the whole of the evidence the prosecution has proved its case beyond all reasonable doubts against the accused. I believe that the accused did not cause the death of the deceased in his attempt at necessary self-defence. There was no fight at all; and the prosecution witnesses all were witnesses of truth. I am also satisfied that the prosecution has sufficiently proved the absence of provocation in the accused and both on the facts and on the law I find the accused guilty of murder as charged,”

Earlier in the judgment, the learned trial Judge considered the defence that the death of the deceased was accidental because it was alleged that it was a result of an accidental fall in the course of a fight between appellant and the deceased that the latter died. The learned trial Judge referred to this aspect of the defence and stated inter alia:-

“The first defence put by the defence counsel is that there was a fight between the deceased and the accused and from this death resulted. This according to defence counsel, is the only deduction from the medical evidence. Defence counsel chose to treat the medical evidence in a very light hearted manner, for it must be a very serious fight indeed, in fact one-sided which could produce the injuries found on the deceased as described in the evidence. After describing the severe bleeding from the mouth and the nose of the deceased the medical evidence went on as follows:-

“The cause of death in my opinion was shock from internal haemorrhage due to a blow or contusion with a hard object to the chest or abdomen. If the woman fell on a hard object it would produce the same effect.”

There was no evidence, however, from either side that the deceased fell on a hard object but there was evidence from the prosecution witness 1, that the deceased was kicked in the abdomen and beaten by the accused. This would indeed be a very one sided type of fight to produce such effect – such massive haemorrhage as was found.”

The findings which the learned trial Judge referred to above established that the death of the deceased was the result of a deliberate unprovoked and brutal attack. On appeal before us, the learned counsel for the appellant abandoned the original grounds of appeal filed by the appellant. He also abandoned the additional grounds attached to his application dated 15/1/72.

Leave was granted for him to file and argue for additional grounds of appeal dated 31/1/72. He based his arguments on two main heads. The first contention was that there were so many contradictions in the evidence of the 1st prosecution witness, who was the only eye witness, that it was so unreliable and discredited that it could not support the conviction of the appellant.

What the counsel considered to be contradictions were the variations in the account of the incident as given by 1st P.W. as constrasted with the inferences drawn by two prosecution witnesses of their observations on their visits to the scene after the incident. In our view these do not amount to contradictions. Her 1st P.W. evidence in chief as well as that given under cross examination was consistent. She did not in anyway contradict herself. We are of the view that Counsel’s contention on this ground is misconceived.

The other contention that counsel urged on the court was the medical evidence was not consistent with what was alleged have caused the death of the deceased. The submission of counsel is that if his first contention that the evidence of 1st prosecution witness was unreliable and discredited is upheld then that only evidence as to the cause of death was not established to be the result of the act of the appellant. We have already rejected the first contention of counsel and therefore the evidence of P.W.1 having been accepted as truthful when considered with the medical evidence, the inescapable conclusion was, as was held by the learned trial Judge, that it was the attack by the appellant and the subsequent injuries on the deceased which resulted, that caused her death.

The deceased after all, in the evidence died on the spot when she was thrown on the ground. It is pertinent to refer to the fact that the same contentions were raised before the learned trial Judge. In a critical and exhaustive analysis of the evidence before him, the trial Judge rejected them.

The learned trial Judge had properly considered the evidence before him and in our view had rightly convicted the appellant as charged.  As we had indicated earlier, there was nothing urged before us to justify us to hold that the learned trial Judge was wrong to reject the defences of accidental death, provocation and self-defence.

For these reasons the appeal was dismissed.

Other Citation: (1972) LCN/1502(SC)