Iteshi Onwe Vs The State (1975)

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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.

In a reserved judgment, the learned trial Judge expressed the following view about the evidence adduced before him:-

“I am quite satisfied that the accused spoke the truth that his son was no-where near the scene.  I think I am right in the view that I am holding that the accused person is the only eye-witness of this offence.”

Although the learned trial Judge was of the view that the accused was the only eye-witness of the incident, he, nevertheless, disbelieved his account and convicted him of the offence after stating further as follows:-
“I am definitely of the view that the accused has not told the court what actually took place between him and the deceased. The story that the deceased went to steal yams at the barn of the accused is to my mind an invention….
I am satisfied that the deceased was killed when it was still bright and not at night time as testified by the accused. It is also my view that the opening at the back of the barn was deliberately made by the accused so as to strengthen his defence that the deceased had entered his yam barn through the opening to steal yams.” (The underlining is ours.)

The learned trial Judge then proceeded to consider the defence put forward by the accused and he found as follows:-

“The reason given by the accused for striking the deceased with the heavy maul (Exhibit “A”) on the head was that he got annoyed because the deceased wanted to kill him.  The deceased did not give the accused any cut (although the accused might not be expected to wait until the deceased had actually given him a cut).  But it was strongly my view that the force used by the accused was completely out of all proportion with the degree of the alleged provocation, or was what was reasonably necessary for the defence of the accused person. I am satisfied that the accused, having knocked off the matchet from the deceased’s hand, it was no more necessary to strike the deceased on the head with the stick in order to prevent his escape. The accused made no attempt to retreat if really he was acting in necessary self-defence. In this regard reference may be made to the decision in R. v. Walter Mcinnes (1971) 55 Cr. App. R. 551 where it was stated that where an issue of self-defence arises, the failure of the defendant to retreat when it was possible and safe for him to do so is simply a factor to be taken into account in deciding whether it was necessary for him to use force, and whether the force used by him was reasonable – see also R. v. Plamer (1971) 55 Cr. App. R. 223.
Having given due weight to all the facts of the case and the defence raised by the accused it is my considered view that the force used by the accused was extremely unreasonable. In this regard I have also had in mind the mode of behaviour of someone in the same standard in life and degree of enlightenment as the accused.”

The points urged upon us by learned counsel for the appellant are these. The appellant was the only eye-witness of what took place on the night in question. Since there was no evidence as to the position of the matchet on the ground after the deceased had been disarmed, the appellant was entitled to the defence of self-defence. Moreover, since he had declined to accept the version of the appellant as to what happened between him and the deceased, the learned trial Judge should have acquitted the appellant in the absence of any other evidence and should not have speculated as he had done as to what might have happened.  In support of this submission learned counsel referred us to two cases, Udo Udo Obot v. The Queen 14 WACA 352 and R. v. Igwe 4 WACA 117.

In his reply, the learned Principal State Counsel who appeared for the respondent referred us to the answers given by the appellant to questions he was asked under cross-examination. He then submitted that those answers showed clearly that the defence of self-defence was not available to the appellant.

We thought there was merit in the complaint of the learned counsel for the appellant. Instead of evaluating the eye-witness account given by the appellant in the light of the written statement (Ex. D1) which he made to the police at the time of his arrest, the learned trial Judge substituted his own version, unsupported by any testimony, for what took place on the night in question. Having found that the 2nd P/W (the son of the appellant) was not present at the scene at all and having decided that the appellant was not a witness of truth, there was nothing left in the case of the prosecution other than the written statement (Ex. D1). That statement showed clearly that the appellant acted in self-defence. The learned trial Judge was therefore in error in embarking on a voyage of discovery, drawing on his imagination en route, and speculating as to what might have taken place. If he had not so speculated, the only conclusion to which he could have come after rejecting the sworn testimony of the appellant was that the prosecution had not proved their case.
The learned trial Judge observed in the judgment that the appellant made no attempt to retreat if he was really acting in self-defence. As there was no evidence that it was possible and safe for the appellant to retreat, this observation is a non sequitor. According to the evidence adduced by the prosecution, it was dark on that fateful night.  The appellant, aged about 57 years was armed with a stick. The deceased, a younger man aged about 30 years, was a thief with the loot still on the ground around him. He was armed with a matchet.The matchet had a shining blade which glittered in the dark. Both of them were alone. Momentarily dispossessed of his matchet, the deceased turned. There was no evidence that he was running away.  Certainly, it would be expecting too much of the appellant for the trial Judge to assume as he appeared to have done that he (the appellant) knew or ought to have known, at that point in time, whether the deceased turned to run away or turned to pick up his matchet on the ground and have another go at the appellant. Faced with that sort of situation where instant and decisive action was required, the appellant did the only thing which a normal, reasonable person defending his life and property would do; he struck the deceased again with his stick. It was unfortunate that this single blow landed on the head of the deceased. If the learned trial Judge had looked hard at the facts as we have done and had assessed the situation critically and with complete objectivity, he would have come to the conclusion that the appellant struck the deceased in self-defence. Considering all the circumstances, no other conclusion seemed possible. The learned trial Judge was therefore in error in holding as he had done that the defence of self-defence was not open to the appellant.
In this connection, we would like to refer to the two cases referred to by learned counsel for the appellant and which appear to us, not only to bring the issues involved in the case in hand into sharp relief, but also to be particularly apposite. In Udo Udo Obot v. The Queen 14 WACA 352, the deceased broke into the house of the accused during the night and stole some meat.  The accused chased the deceased who unlike the deceased in the present case, was unarmed and cut him with his matchet.  He was convicted for murder.  In the unsuccessful appeal against the conviction, Verity, C.J., observed as follows:-

“A person who in the night finds another in the act of committing a felony is entitled to use such force as may be necessary to apprehend the felon, even to the extent of killing him in order to prevent his escape but it would be an unhappy state of affairs if when he has caught up with the escaping felon who is unarmed he should be at liberty to hack him to death with a lethal weapon such as a matchet. This goes far beyond the force which would be justified by the circumstances and is in our view clearly murder.”

In the case in hand, not only is the deceased thief armed with a matchet, he even brandished it at the appellant, who was in hot pursuit. What the deceased did to the appellant, in the particular circumstances of this case,  constituted an unprovoked assault.  According to Section 252 of the Criminal Code of the East Central State (Cap. 30 of the Laws of the East Central State)-

“252. A person …. who by bodily act or gesture attempts or threatens to apply force of any kind to the person of another without his consent, in such circumstances that the person making the attempt or threat has actually or apparently a present ability to affect his purpose, is said to assault that other person, and the act is called an assault.”

It is open to any person assaulted to defend himself. This is made abundantly clear by the provisions of Section 286 of the said Code which read-

“286. When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use force to the assailant as is reasonably necessary to make effectual defence against the assault:
Provided that the force used is not intended, and is not such as is likely, to cause death or grievous harm.
If the nature of the assault is such as to cause reasonable apprehension of death or grievous harm, and the person using force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous harm, it is lawful for him to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous harm.” (The underlining is ours).
The relevance of the provisions of the above sections of the Criminal Code to the present case is borne out by the decision of the West African Court of Appeal in R. v. Igwe (supra).  In that case the appellant, from his hut, observed the deceased cutting palm nuts from trees growing on land which had been the subject of litigation between himself and the deceased and which was still in dispute on that date.  The appellant asked the deceased to stop gathering the produce in question but he refused and abused the appellant. The appellant, though unarmed, thereupon attempted to take back the produce, whereupon he was pursued by the deceased with a matchet in hand. The appellant succeeded in disarming the deceased and felling him to the ground without himself receiving any injury.  He (the appellant) thereupon got hold of the deceased’s matchet, set upon him where he lay on the ground and inflicted multiple mortal wounds on the deceased with the matchet. In the successful appeal against his conviction for the murder of the deceased, the court held, inter alia, as follows:-

“Moreover, it is clear that the deceased attacked the accused with what the accused had every reason to believe was a very definite intention to kill. It is clear that up to the moment when he disarmed the deceased the accused acted perfectly within his rights, the only question is whether when once he had disarmed the deceased he was justified in seizing the deceased’s matchet and killing the deceased with it. Upon this point the accused in the heat of the moment may well have thought, and indeed not without reason, that he was engaged in a life and death fight with the deceased, if he could not kill the deceased he would certainly be killed by the deceased. And it must be remembered, it was the deceased who started the deadly fight.  This brings the accused’s act within the provisions of the second paragraph of Section 286 of the Criminal Code, as being lawful in self-defence.’
(The underlining is ours).

It only remains for us to add that the views expressed by the appeal court to the situation in the case of R. v. Igwe, and with which we entirely agree, apply with more force to the present case where it was possible for the deceased to have picked up his matchet in the dark and to have attacked the appellant with it.

There is one further matter to which we must refer. We noticed that during the course of his testimony, Ephraim Ochemba (5th P/W), the police constable who arrested the appellant and later took the written statement (Ex. D1) from him, was asked by the learned trial Judge whether he also took the statement of the 2nd P/W, the son of the appellant. To this question, the police constable replied –

“It was Sergeant Iwegbuna – I have the statement here.”

The statement was there and then tendered and admitted in evidence as Exhibit “F”.  With respect, we think this procedure is highly irregular to say the least.  The written statement of a prosecution witness is only relevant to the proceedings at which he gives evidence where the witness proves “adverse” or is shown to have made, at other times, a statement inconsistent with his present testimony. Such a statement is not evidence against the accused with respect to the allegation it contains; it is relevant only as to the credibility of the witness (See R. v. White (1924) 17 Cr. App. R.P. 60, and also Sections 208 and 209 of the Evidence Law of the East Central State (Cap. 49). Dealing with the same point in The Queen v. Yesufu Akanni (1960) 5 F.S.C. 120 at page 123, where a statement made by a prosecution witness was tendered and admitted in evidence without any foundation being laid for its admission, the Federal Supreme Court observed-

“This document should never have been tendered or received in evidence. The only proper use to which it could have been put was the cross-examination on it of the witness, if he had said anything in his evidence which was contrary to what he had said to the Police. There was no suggestions that he had done so, nor was he in fact cross-examined on it at all. The statement, even if it had contradicted the witness’ evidence at the trial, could only have had the effect of discrediting that evidence: it would not have been any evidence of its own truth (Phipson, 9th ed. 503).  The learned trial Judge, however, referred to the statement and apparently treated it as corroborating the witness. This, with respect, was an improper use to make of it.”
In the case in hand, not only was the statement (Ex. “F”) never put to the 2nd P/W when he was in the witness box, the learned trial Judge also made use of it in the judgment when he observed as follows:-

“According to the accused the boy ran away after reporting to him that a thief was at the barn. In the opinion of the accused the boy did not know what happened thereafter. This is also well borne out by the statement of the accused’s son to the police (Ex. “F”) which was made when the matter was very fresh in the boy’s mind. In the said statement, Alo Iteshi clearly said that he did not accompany his father when the father proceeded towards the back of the barn….
I am satisfied that the accused spoke the truth that his son was nowhere near the scene.”
It is sufficient for us to say that the learned trial Judge was in error in admitting the statement in evidence as he did and also in making use of it.

For all these reasons, it is the majority view of this court (the Chief Justice and Fatayi-Williams, JSC.) that the defence of self-defence, relied on by the appellant, should have been sustained.  We, therefore, allowed the appeal and set aside the conviction of the appellant.

Other Citation: (1975) LCN/2009(SC)