Francis Asanya V. The State (1991)

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NNAEMEKA-AGU, J.S.C 

This is a further appeal by the accused person, Francis Asanya from the judgment of the Court of Appeal Benin Division, which had on the 30th June, 1989, confirmed his conviction on a charge of murdering his wife, Theresa Asanya, contrary to Section 254(1) and punishable under Section 257(1) of the Criminal Code (Cap.26) Laws of Western Nigeria, 1959 applicable in Ondo State and the sentence of death passed upon him. At the trial before Ogunleye, J., the prosecution had called six witnesses and the accused person (hereinafter called appellant) testified on his own behalf and called one witness.

The facts of the case as established in the court of trial are straight-forward. The appellant lived in a one-room apartment at Ajede Camp in Owo Local Government Area of Ondo State until 26th October, 19S3. His landlord was one Mr. Elegbeleye who testified at the trial as P. W.1. At about 12 mid-night on 26.10.83, P.W.1 heard a female voice from the room of the accused and his wife. P.W.1 and P.W.2 (one Mr. Odo) knocked at the door of the room of the accused and his wife but there was no reply. The door was locked from within.

Suspicious of the situation, P.W.1 and P.W.2 climbed into the room and opened the door from within. In the room, with the aid of P.W.1’s lighted lantern P.W.1 and P.W.2 saw appellant’s wife lying on the floor in a pool of her own blood. They noticed that she had matchet cuts on her face, chest and all over her body. The only other person in the room was the appellant. Asked, the appellant told P.W.1 and P. W.2 that the deceased had refused him sex. One Mr. Odan (P.W.3) followed the body of the deceased to St. Louis Hospital, Owo, where P.W.1 identified the deceased’s body to a medical doctor (P.W.5) who performed the autopsy.

Then P.W.4 (C. Ali) carried P.W.1 on his motor-cycle to Ipele Police Station to report the incident. It was actually the police who removed the deceased’s body from the scene of the crime. According to P.W.5 (Dr. Akinwe) a Senior Principal Medical Officer who performed the autopsy on the body of the deceased at St. Louis Hospital, Owo, she had three deep cuts on her head and face and brain matters were exposed. There was extensive haemorrhage. Death in doctor’s opinion was the brain damage and the haemorrhage resulting from the injuries. In the opinion of the doctor the injuries could not have been self-inflicted.

P.W.6, Sgt. F. Nwagbuzor investigated the case. He testified that on arrival at the scene he saw a pool of blood on the floor in a room where the deceased was lying and a blood-stained cutlass (Exh.B). He also arrested, charged and cautioned the appellant in English language and he volunteered a statement which was tendered as Exh. A at the trial.

Appellant also gave evidence on his own behalf. He said he had no quarrel with his wife, Theresa. He did not know the time he harmed his wife and matcheted her to death. It was at Akure police station that he came to know that she was dead. He remembered that on 25.10.83 when he attended a tribal meeting his body gave him signs and something was blowing a whistle in his ears. He did not even remember fighting his wife. He was mad in 1978 and was treated at Ekoko-Agbor in Bendel State by a native doctor and he became well.

He was well until December, 1979 when he took ill again for only two days. Another native doctor treated him at Nsukka and he stayed with the native doctor for 14 days. He stated that in the night of 25.10.83 when he returned to his house he knocked at the door and his wife, Theresa, opened the door for him to enter and he did. Thereafter he went blank. He only remembered that he had had some drinks at the tribal meeting and that he knocked at his door. He agreed he made a statement to the police in his own handwriting on 30.10.83. He also agreed that he used his own cutlass on his wife.

The appellant’s only witness was one Mr. Obi (D. W.2), a convict who was serving a term of imprisonment for fraud. D. W.2 confirmed that in 1978 at Ikoko-Agbor the appellant was sick and D. W.2’s father treated him with herbal medicine. The witness stated that he never met the appellant again until 30.10.86 in Owo prison.

After listening to addresses of counsel and considering the evidence adduced before him, the learned trial Judge reached a number of conclusions which are important for the determination of this case. First, after considering the evidence as to whether the act of the appellant caused the death of his deceased wife, the learned trial Judge concluded as follows:-

“Clearly the cause of death was the brain damage and external haemorrhage caused Theresa by the use of a matchet on her by her husband who is the accused. The prosecution has established, by evidence, the cause of death of Theresa as well as established in addition that the act of the accused caused her death. I hereby infer an intention to kill Theresa by the accused on 26/10/83. He is taken to intend the natural and probable consequences of his acts (See R. v. Dim (1952) 14 W.A.C.A.154 at p.155); and (2) (R. v. Nungu (1953) 14 W.A.C.A. 379 at pp.379/380). There was no rebuttal evidence that the accused believed that the assault on his wife would probably not cause or contribute to her death. (See R. v. Amponsah & Ors. (1938) 4 W.A.C.A.120 at p.122). On the evidence I found as a fact that the act of the accused caused the death of his wife; the deceased.”

Secondly he gave a very careful consideration to the issue of whether or not on the evidence before him it was proved that the appellant was insane. Before reaching a conclusion on the point, he considered the evidence of the behaviour before and at the killing. In this respect he considered the evidence of P.W.1, P.W.2, P.W.3 and P.W.4. He also analysed the appellant’s behaviour which he himself meticulously recalled on oath. Also the learned trial Judge noted that none of the appellant’s relations was called to support his evidence of his insanity (Dim v. The Queen (1952) 14 W.A.C.A.154 at p.157).Thirdly on the very vital evidence of D.W.2, the learned trial Judge commended as follows:

“He mentioned no occasions when his father needed his assistance either generally in 1978.Witness (D.W.2) was pretty close to the accused and other inmates in his father’s clinic. But “it was the accused who recognised me at Owo prison and introduced himself to me on 30/10/86. If the witness was actually “pretty close to the accused” in 1978 one would expect him (D.W.2) to, at least, recognise the accused in October, 1986. D.W.2 seemed to know more details of accused’s illness in 1978 than the accused himself.

Accused did not mention the name of the herbalist who treated him for madness in 1978 nor did he tell court that he was then hospitalised in any herbal home. D.W.2 gave both details. That was the man who met accused in 1986 and could not even recognise him. D.W.2 is a shameless liar to say the least. He is doing his incompetent best to provide an escape route from justice for the accused. D.W.2 is a worthless witness and I reject his testimony as regards accused’s mental illness in 1978 and as to who offered him herbal treatment then. This witness (D.W.2) had every appearance of lying and lied unashamedly to this court when he claimed to have met accused at Ekoko-Agbor in 1978.”