Iteshi Onwe Vs The State (1975)

LawGlobal-Hub Lead Judgment Report

FATAYI-WILLIAMS, J.S.C.

The appellant was the accused in Charge No. AB/10C/74.  He was tried in the High Court of the East Central State sitting at Abakaliki for the murder of Nwafor Ugbo Ajagbe and was convicted and sentenced to death on the 3rd of June, 1974.

On 16th October, 1975, we allowed the appeal, set aside the conviction of the appellant, and ordered that he should be acquitted and discharged. We now give our reasons for the order we then made.

The facts as given by Alo Iteshi (2nd P/W) may be summarised as follows. On 18th March, 1973, at about 6.30 p.m., Alo Iteshi, a cow attendant and the son of the accused, saw the deceased stealing some yams from the accused’s yam barn. He ran home and reported the incident to the accused who thereupon took up a stick and ran to the yam barn followed by the 2nd P/W. When the deceased saw them coming he ran out of the yam barn, threw away the yams he was carrying, and raised up the matchet which he had with him. The accused nevertheless got close to the deceased and succeeded in knocking off the matchet from his hand. According to the witness –
“It was when the accused tried to knock off the matchet that the stick fell on Nwafor’s head. My mother then raised an alarm that a thief was around and some people collected there…
We then went and called the councillor. The councillor came and saw the body of the deceased.”

Not long after, the accused went and made a report to the local councillor (Linus Nwachi 4th P/W/) who later accompanied him to the local police station where the accused reported the incident. After the report, they all went back to the scene where the councillor saw the sheath of a matchet. The accused had earlier taken the matchet of the deceased to the councillor. On discovering the thief had died, they brought his corpse to the police station. The corpse was then conveyed in a car to the public mortuary at Ababakaliki where it was identified to the doctor who carried out the post mortem examination. When asked under cross-examination what was the occupation of the deceased before the incident, the councillor replied that the deceased was a thief.

In his written statement (Ex. D1) made to the police after his arrest, the accused gave his own version of the incident as follows:-
“Two days ago, I was in my compound when my son called Alo called on me and told me that thieves were in my yam barn. I picked up a piece of stick and went to the back of my yard. The thief saw me and started to run. I chased him, he stopped and wanted to cut me with a matchet. I took the stick with me and knocked him down together with the matchet and he died. When this was happening I was shouting; Igwe Nwachi and Okoro Inyima came out. Later I went to Police Station Noyo and reported. The Policemen told us to carry the dead body to Abakaliki, we then carried the body to Abakalilki. When I hit him with the stick I did not know that he will die. He wanted to cut me with a matchet hence I hit him with the stick.  I do not know the man before. I took the policemen to the scene and showed them where the thief passed and entered into my barn and my yams he stole. He stole my 16 yams. (The underlining is ours).
The doctor who performed the post mortem examination on the body of the deceased on 20th March, 1973, described the injury which caused his death as follows:
“The deceased had a deep laceration and compound fracture of the right temporal region of the skull. No other injuries were seen. The cause of death in my opinion was due to coma from head injury. By head injury in this case I say that there was bleeding between the skull and meningis (the covering of the brain and the skull itself). The amount of bleeding there caused pressure of the brain. Whenever the brain is compressed and there is no release of the pressure the person will go into a coma and soon die”.

The above was the sum total of the evidence adduced in support of the case for the prosecution. The accused, nevertheless, elected to give evidence in his defence but he called no witnesses as there was nobody else present at the time he hit the deceased with the stick. Part of his testimony reads:

“On the day of the incident, my son P/W 2 brought into the house my cows. One cow was missing and I asked him to go back for the missing cow. He did not come back till night time and when he returned he told me that he had seen a thief in my yam barn. I then picked up a stick and went to my yam barn. When the thief saw me he had then come out from the barn. The thief threw down the yams he was carrying and got his matchet out from its sheath and brandished the matchet at me. As he did so I retreated and when he brandished the matchet a second time I used the stick to knock off the matchet he was holding and the matchet fell off from his hand. I then hit him with the stick on the head and he fell on the ground. I first knocked off the matchet from his hands and when he was about to turn I hit him with the stick at the back of the head and he fell down. It was very dark then. We had already had our night meals. Exhibit “A’ was the stick I used. Exhibit “B” was the deceased’s matchet and Exhibit “C”, the sheath of the deceased’s matchet.”
(The underlining is ours).
The accused was subjected to a lengthy cross-examination in the course of which questions were put to him as to why he hit the deceased with the stick.  The relevant questions and answers are reproduced hereunder:-
“Q.  When you knocked off the matchet you should have held him

A. I was annoyed because he wanted to kill me.

Q. How many times did you hit the deceased with the stick

A. Two times – the first was on the hand and the matchet fell off from his hand when he turned I hit him on the head and he fell down.  I hit him on the head after disarming him because I was annoyed.

Q. You could have hit him on any other part of the body other than the head

A. It was dark then. I saw him brandishing the matchet because the matchet was very bright then – it was shining then,”
(The underlining is ours).

When asked whether he saw his son (P/W2) at the scene, the accused replied that his son ran away and could not have seen what happened.