Obaji Aga V. The State (1976)
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IDIGBE, J.S.C.
We now give our reasons for dismissing this appeal on 6th May, 1976. The Appellant was on 7th May, 1975, in the High Court of the former East Central State holden at Abakaliki (Amadi-Obi. J), convicted of the murder of Oma Etteh (f) and sentenced to death.
Briefly, the facts in support of the case for the Prosecution which the Court of trial accepted are as follows: Chukwuma Nnaji PW 2,( also the wife of the father of the deceased) was on the 13th day of April, 1974 having an unpleasant exchange of words with her mother-in-law when the deceased arrived on the scene, remonstrated with her, and in order to keep her (PW 2) in check reminded PW 2 of an Ibo parable which states that a non-grass-eating animal associating with a grass-eating one, like a goat soon learns not only to eat grass but also to eat roots of plants like goats do.
The Appellant who at the time was in an adjoining room overheard the parable, came out and insisted that the reference, by the deceased, to the goat in the parable was meant for her. Although the deceased (who was then five months pregnant) persistently denied this accusation, the Appellant soon attacked and beat her up and threw her on the ground. People nearby (PW 2 inclusive) intervened and soon separated both of them.
The deceased left the scene but sometime much later she returned to the scene to collect the head tie she had inadvertently left there. She was once again attacked by the Appellant who threw her on the ground and gave her a violent kick in the belly. The deceased who soon after bled from the vagina was carried into her room unconscious; she continued to bleed until she died shortly after in her room. At the time of the assault the Appellant knew very well that the deceased was five months pregnant. Medical evidence (given by the doctor PW1) confirmed that the deceased died as a result of shock and heart failure from severe loss per vagina from the pregnant uterus.
The Appellant denied the charge and testified to facts which suggested that she was first attacked by the deceased who had also insulted her by calling her a goat. The learned trial judge rejected her story and she did not impress him as a truthful witness. The Appellant admitted under cross examination (1) that when she attacked the deceased and kicked her on the belly she knew that the deceased was pregnant, (2) that she (herself) had had experience of pregnancy.
On the state of the evidence there was, indeed no basis for the belief, by the Appellant, that the deceased called her, or referred to her indirectly as, a goat; the learned trial Judge found as a fact that the deceased did not directly or indirectly insult the Appellant and that even if she did (by referring to her as a goat) she immediately withdrew the insult when challenged by the Appellant thus reducing the sting of the provocation. Parts of the findings of the learned trial Judge reads:-
I believe and find as a fact that although the deceased told the accused that she was not referring to her as a goat yet the accused slapped her and threw her on the ground and that at the time she did so she knew that the deceased was five months pregnant. I believe and find as a fact that after they had been separated the deceased went to her house leaving her head tie behind and that on her going back to take her head tie the accused again attacked her, threw her on the ground again and kicked her on the belly very well knowing that she was pregnant. I believe and find as a fact that it was this that caused her bleeding from the uterus which caused her death. The accused is a woman and has experienced the state of pregnancy I have no doubt in my mind that she knew that she was endangering her life when she threw the pregnant deceased woman on the ground
The Learned trial Judge then found the Appellant guilt of murder but he did so after the following observations to which our attention has been specifically drawn, and these are:-
I have no doubt in my mind that when the accused threw the deceased on the ground and kicked her on the belly she did so with intent to prosecute an unlawful purpose of causing the abortion of her pregnancy an act which she knew endangered life. Section 316(c) of the Criminal Code provides:
“Except as hereinafter set forth a person who unlawfully kills another under any of the following circumstances that is to say . (c) if the death is cause by means of an act done in the prosecution of an unlawful purpose which act is of such a nature as to be likely to endanger human life ….. is guilty of murder.
The circumstances under which the accused killed the deceased came within the provisions of this sub-section. I am confirmed in this finding because as a woman experienced in the hazards of pregnancy if one takes her first throw of the deceased, a woman she knew to be pregnant, on the ground as a result of temper, there is no doubt that her second attack of the deceased after they had been separated and the deceased later went to take her head tie and her then throwing the deceased on the ground and kicking her on her pregnant belly was, to say the least, calculated and intended to kill the child in the womb and endanger the life of the deceased. I find the accused guilty of murder and convict her accordingly.
We are satisfied, even after making allowances for the position and standing in life of the Appellant, that there was not, in law, such provocation from the deceased as would justify the violent attack on the deceased and so reduce the offence to manslaughter. The evidence was that the deceased returned to the scene to collect her head tie some time much after the first equally violent assault. However, we do not consider that the finding of guilt by the trial court, based as it is, on sub-section 316(c) of the Code was correct in law. We think that expression an act done in the prosecution of an unlawful purpose in the sub-section must mean an act done in furtherance of a purpose which is unlawful. It may be useful here to refer to Russel on Crime 12th Ed. Vol.1 P.488 where the learned author submitted that any act may be regarded as done in furtherance of the ultimate felony if it is a step intentionally taken for the purpose of effecting the felony. Thus the driving of a motor-car in order to reach the spot where the felony is to be committed is done in furtherance of the felony; but if while on the way the driver runs over and kills a pedestrian this collision is merely incidental and the running over of the pedestrian is not done in furtherance of the felony, for the driver did not run over the pedestrian as a means of getting to his desired destination.
The evidence in this case does not justify the finding of the trial court that the purpose of the attack on the deceased was to kill the child in the womb. In R v Okoni 4 W.A.C.A. 19 the evidence was clear that the purpose for which the building (which was believed to house the intended victim) was set on fire (an act by itself unlawful since it amounts to the offence of Arson) by the Appellant was to effect the murder of the intended victim. Accordingly, the Appellant was duly convicted of murder, not of the intended victim, but of another person a woman who happened to be in the house when it was set on fire. Again, in Idiong and Umo v The King (1950) 13 W.A.C.A. 30, the first Appellant intended an abortion of the pregnancy of the deceased and that was the purpose for which the second Appellant (a native doctor) was approached; and he (second Appellant) was to administer drugs to procure the abortion. Undoubtedly the administration of drugs in those circumstances was an act done in the prosecution of an unlawful purpose. But as the prosecution in that case (IDIONG AND UMO) were unable to establish beyond reasonable doubt that the administration of drugs in the particular instance was an act likely to endanger human life, the Appellant was held not guilty of murder but of manslaughter. [see 13 W.A.C.A. 33 & 34].
In the case in hand there is, indeed, no basis for the finding of fact made by the trial court that the Appellant intended to kill the child in the womb; undoubtedly, had there been such evidence, the action of the Appellant in kicking the deceased on the belly following a violent throw on the ground would most certainly be an act done in furtherance, or the prosecution, of an unlawful purpose. (i.e. killing the child in the womb).
We are, however, unable to find the need for the exercise embarked upon by the court of trial. The evidence in this case clearly shows that the accused deliberately threw a woman five months pregnant violent on the ground on two occasions and thereafter kicked her violently on the belly, knowing full well that she was pregnant. That, without doubt, is an act which must cause the deceased grievous harm [within the provisions of sub-section (b) of section 316 of the Criminal code Cap 30 Vol. 2 of the 1963 edition of the Laws of Eastern Region applicable in the former East Central State]; and the Appellant must, in law, be presumed or taken to intend the natural consequence of her action.
The facts here clearly do not come within the purview of the provisions of section 316(c) aforesaid; they clearly are within the provisions of section 316(b) and the Appellant must be guilty of the offence of murder with which she was charged. We are satisfied that the trial court rightly found that there was no provocation for the action of the Appellant and certainly not enough, on the accepted facts even for a person of the Appellants standing and position in life, to reduce the offence from murder to manslaughter.
This, no doubt, is a case which calls for the application of the Proviso to sub-section (1) of the Supreme Court Act 1960 and there being no merit in this appeal we, accordingly, dismissed the same.
Other Citation: (1976) LCN/2287(SC)
