Nomeh Oka V. The State (1975)
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On the 2nd October, 1975 the appeal in this case was allowed and the conviction for murder of the appellant was quashed and the sentence of death set aside. This court entered a finding of not guilty of the said charge and ordered that the appellant be acquitted and discharged.
The case for the prosecution against the appellant was that around midnight on or about 11th May, 1973, the deceased, who was armed with a matchet, inflicted injury on one of a group of four persons of which the appellant was one. This incident took place in the house of the appellant.
He then threatened to kill the appellant with his matchet. On his approach to attack him, the appellant after taking his own matchet in order to ward off the attack, then took to his heels, closely chased by the deceased. There are two versions of what subsequently happened, one was given by the appellant in his statement to the Police which was tendered in evidence as part of the prosecution case; that whilst he was being chased he waved his matchet behind him in order to ward off any attack by the deceased and during this he gave a cut to the deceased in his stomach.
The other version was given by the wife of the appellant, and, which was that at a certain stage when the deceased was chasing the appellant, the appellant stopped running, faced the deceased and in a duel with matchets, hit or inflicted a matchet cut on the stomach of the deceased who fell down there and then. It is therefore apparent that at the close of the case for the prosecution the evidence of the prosecution as to the cause of the matchet cut was that given by the appellant and his wife which incidentally they repeated in the defence.
The learned trial Judge did not seem to appreciate this at all but went on to say as follows:-
“All these statements contradict one another and they only go to show that the true story has not been given the court by the accused. It is true that the onus does not lie on the accused to prove his innocence. But the accused has admitted giving the deceased the cut on the stomach. Dr. Azuokwu has testified that this cut caused the death of the deceased. It has been established conclusively therefore that the death of the deceased was caused by the act of the accused. I do not, in the least, believe the story of the accused and his wife.”
The case for the prosecution as we have earlier on remarked, as to the infliction of the injury on the deceased depended on the statement made by the appellant to the Police. That was what the prosecution relied upon as proof of the cause of the injury on the stomach of the deceased. So that at the close of the case for the prosecution the act complained about did not come under any of the sub-sections of Section 316 of the Criminal Code; there is no other evidence of how the injury was inflicted and therefore none to substantiate the ingredient of unlawful killing. In other words there was no proof of “unlawful killing.”
As the learned trial Judge has rejected the evidence of the wife of the appellant we need not consider that version at all. It is a material ingredient of the offence of murder or manslaughter for that matter, that any killing alleged and proved must be unlawful as set out in Section 316 of the Criminal Code. If this ingredient is not proved either by direct or circumstantial evidence then the case is not made out.
Mr. F.O. Akinrele who appeared for the appellant before us, obtained leave to argue 3 additional grounds of appeal together. The 3 additional grounds read as follows:-
“(1) That the Learned Trial Judge erred in law in convicting the appellant of the offence charged when the case has not been proved beyond a reasonable doubt as required by law.
(2) That the Learned Trial Judge erred in law in holding that the plea of self defence or provocation was not available to the appellant when in fact the ingredients necessary to sustain them were manifest in the evidence before the court.
(3) That the judgment is unwarranted unreasonable and cannot be supported having regard to the evidence.
His main contention was that there was no proof of unlawful killing and therefore the conviction for murder was wrong. Mr. Edozie, Senior State Counsel, from the East Central State, had to concede that this was so and quite rightly too if we may say so. In the circumstances therefore, he had to withdraw his earlier contention that he wished to support the judgment of the lower court.
For the above reasons, this appeal was dealt with as set out in the first paragraph of this judgment.
Other Citation: (1975) LCN/2010(SC)
