Ogumola Ojo Vs The State (1972)

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COKER, JSC.

When we dismissed this appeal at the hearing on the 28th September, 1972, we stated that we would give our reasons for doing so later, and we now give those reasons. The appellant was charged with and convicted of the murder of one Bernadette Nwanyibunwa Onwuliri at the High Court, Owerri in the East-Central State. It was alleged at his trial that he murdered the deceased at Okpala on the 14th of January, 1971.

At the trial of the applicant, a doctor who had performed a post-mortem examination on the body of the deceased, testified to the effect that she was a woman of about 25 years old and was some six months pregnant at the time of her death. He found on the corpse evidence of extensive injuries to the bones of the skull and the face caused by several and separate applications of an instrument like a mortar on the affected parts.

There was an eye-witness of the events immediately leading to the death of Bernadette Onwuliri, that was the landlady of the appellant whose wife the deceased was. The landlady was Maria Ubani (P.W.4) and she stated in the course of her evidence thus:-

“On 14/1/71 at about 3 a.m. as I was in bed, I heard an indication from the direction of accused room that someone was beating another. There was a cry in agony and the exclamation O God, O God, in Ibo, Chineke! Chineke! He has killed me! Ogbuelam O! I put on the light and came out and saw Bernadette lying on the ground on the doorway of the accused’s room. She was in a pool of her blood and the accused stood besides her head and the deceased was lying face downwards.

When I asked the accused what was wrong he stamped his foot repeatedly on her back and hit her on the head with the mortar and said “You must die”. I summoned the accused fellow soldiers and also my husband relation called Onyeso Nwachukwu. When the soldiers came the accused fled and they caught him and took him to the Camp.”

The appellant was later arrested and he made a statement to the Police in which he stated that he threw the mortar, produced in evidence as Exhibit A, at his wife, Bernadette, after she first threw it at him and that as the mortar hit her she fell down and died. At his trial, he gave evidence to the same effect and called two witnesses. One of them, Georginia Adiele, gave no evidence relevant to the case of the appellant and she should not have been called. The other, Dr. Jeremiah Iwenofu, stated that he had been treating the appellant between the 29th January, 1971 and the 22nd February, 1971 for malaria which was more serious than the usual attack of malaria, and that during this period he acted as if he was not quite mentally stable.

The learned trial Judge rejected the story of the attack on him by his wife and the hurling of the mortar at him by her. He found that in the course of a rather unusual dispute the appellant, a soldier, threw the mortar at his wife, Bernadette, and eventually killed her in the way described by the witness Maria Ubani. He then convicted the appellant as charged.

On appeal before us, it was argued by learned counsel for the appellant that a defence of insanity was raised but was not considered by the learned trial Judge as it ought to have been considered. It was not disputed that all the other defences open to the appeallant were fairly considered. It was not disputed that all the other defences open to the appellant were fairly considered by the learned trial Judge and equally fairly rejected.

The appellant never stated or even suggested that he was mentally unbalanced or insane and we think it appropriate to observe that learned counsel who represented him at the trial did not breathe a word about the defence of insanity. Dr. Iwenofu, one of the defence witnesses, did say that during the time he treated the appellant for malaria he acted as if he was mentally unstable.

He did not go further and clearly this was no evidence of a mental state in which the appellant was incapable of knowing the nature of what he was doing and of appreciating whether his acts were right or wrong. It is not part of the duty of any court to speculate upon possible defences open to accused persons and although it is the duty of the court in a case of murder to consider all the defences fairly raised on the evidence before the court, it is not the business of that court to scrounge for evidence which may have the effect of raising one type of defence or the other in answer to the charge.

We think the argument of learned counsel for the appellant overlooked the clear facts of this case and the evidence which the learned trial Judge rightfully accepted. The learned trial Judge described the case as a “simple and straight-forward one”. The only defence put forward by the appellant was that of provocation and his attempts to demonstrate that he himself had a scar on the head were belied by the doctor who treated him and who later performed a post-mortem examination on the corpse of the deceased. This doctor had been asked to examine the appellant in court.

In the same way, the evidence of the nurse who saw him at the hospital on the day of the murder (P.W.2) and that of his landlady, Maria Ubani, (P.W.4) gave the lie to his belated attempts to establish the presence of a scar on his own head. All these witnesses were seen and believed by the learned trial Judge and it is not contended that he was not right in doing so.

It is manifest that the appellant in an outburst of temper, with his eye open and his senses alive and alert, brutally killed his wife in a show of strength that he was a solider. This was a gratuitous murder and the learned trial Judge could not have come to any different conclusion about the guilt of the appellant. We therefore dismissed the appeal.

Other Citation: (1972) LCN/1245(SC)