Ofoke Njoku Vs The State (1993)

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BELGORE, JSC.

The appellant, a housewife, was tried and convicted under S. 319 (1) of Criminal Code Law of former Anambra State for the murder of her husband, Njoku Igboke. The trial took place at Abakaliki Judicial Division. The prosecution’s case was that on the 29th day of December, 1977 at Amagu Izzi the deceased arrived home from the market and asked for his supper which the appellant gave him. He complained that the fish in the stew was full of bones and implying it was not good.

It would seem he made a big issue of it but the appellant apologised and promised to get better fish to cook next time. At the time he came home their son, Njoku Igboke, 18 years old, had just finished eating his own meal. So he was around when his father the deceased, complained that his stew was full of fish bones rather than fish and in the words of the young man (who was P.W. 1) “he protested that only fish bones were in his soup and blamed the accused for not recognising his status as the head of the family.” He threatened to discipline her.

The deceased, the appellant and P.W. 1. then retired to the same apartment to sleep for the night. P.W. 1. then claimed he was on the same mat with his mother while the deceased was on another one opposite them. Here the divergent stories started. The prosecution’s case was that the deceased had just slept when the appellant picked up a pestle with which they normally wedged the door and with it dealt three blows on the deceased’s head. The deceased groaned, stretched his legs and then became motionless. At the time of the attack the deceased was facing away from the appellant and P.W.1, and had his hands under his head with his matchet that he customarily kept by his side. The appellant picked up the matchet of the deceased and ran out and away. According to P.W.1., the incident occurred around 9 p.m.

The appellant’s story in defence as told by her in her voluntary statement to the police and as P.W.4, Nwazufu Erinye, a neigbour, said she told him was that because of the heated argument on the stew full of fish bones rather than fish, he threatened he would kill her bringing out his matchet which he kept by his side. Although, in her voluntary statement, Exhibit C, she said as follows:

“…….. I told him to forgive that the following day I would buy another fish to cook for him. He said both of us would die. He then took his matchet to cut me, I quickly went to a comer of the house, got hold of a pestle, I gave him two hits by side of the head and he fell down and died ……… My son named Igboke Njoku was at home during the incident.” When P.W.4, who was the village councillor, went to the house of the deceased, he saw the deceased lying on a mat with his two hands clasped under his head with extensive flow of blood. The medical report of the autopsy Exhibit D says inter alia as follows:

“A 4 cm vertical laceration wound (sic) surrounded by a marked scalp contusion of the left side on the scalp behind the right ear and covered with ………………… blood. Depressed fracture of the frontal bone on the left side. Extradural haemorrage on the left side of the anterior crarial tossa.

I certify the cause of death in my opinion to head injury.” Though the appellant in her evidence on oath in court elaborated fully her version of what happened, it is not much different from her voluntary statement. She agreed her attack on her husband killed him but she claimed she did so in self defence.

Learned trial Judge preferred the version of the P.W. 1, the son of both the deceased and the appellant; that is to say the deceased had gone to sleep on the mat when stealthily the appellant from the back rained blows on his skull with a pestle. He disbelieved the story of the appellant that she pre-empted the deceased attacking her with a matchet as he threatened, he rather found the appellant rashly rushed at the sleeping deceased and smashed his skull. The Court of Appeal refused to interfere with the decision and dismissed the appeal lodged by the appellant and this led to this appeal.

The only question advanced as an issue for determination in the appellant’s Brief runs as follows:

“………….. whether the evidence adduced at the trial was sufficiently cogent to discharge the burden beyond reasonable doubt.”

Seyi Sowemimo, Esqr, of counsel, for the appellant, in a well written and researched brief of argument, argued that the appellant’s main contention of self-defence was not adequately considered and cited circumstances in the case of Grace Bonis v. The State (1971) All NLR 334, 337 where the evidence of the appellant that she was held by the throat was not considered. In the instant case, learned trial Judge thoroughly assessed all the evidence in the case both for prosecution and for defence and came to the conclusion that he believed the evidence of P. W. 1., the son of the deceased and the appellant, and that he never believed the deceased was about to attack the appellant. Exhibit 1 is a confession not as to guilt but as to why she attacked and that she indeed used the pestle to smash her husband’s head. The Court of trial believed and held she was not about to be attacked with matchet by the deceased. What he believed was the P.W.1’s evidence that it was the practice of the deceased to sleep with the matchet by his side at night.

Counsel for the defence raised a lot of dust on Court of Appeal not frowning on the trial Judge’s findings that “the accused was tired of her husband. There was a design to effect death which was achieved in a cruel manner with a dangerous weapon” and

“The accused did not suggest that the husband was not of good character of even temper and quiet disposition. She did not say he was a drunkard and that she lived in terror of him. They did not live in a state of unhappiness”

These quotations ought to be viewed in their context not out of context. While the first quotation is unjustified for nowhere was there evidence that the appellant was fed up with her husband, but the remark is a mere part of questions trial Judge had in mind about the defence of the appellant that she acted in self defence. Apart from believing there was some quarrel there was no evidence of the accused prior to that day being a troublesome man and aggressive person to justify the appellant’s fatal attack on him to pre-empt him. He found further as follows:

“I find as a fact that accused was not exposed to any serious threat nor did she act in an agitated frame of mind. There was nothing to excite the accused to a heat of passion so that it could be said that her mind was uncontrollable and incapable of competent reflection. The deceased often kept his matchet beside him whenever he went to sleep. In the locality, the matchet is an instrument of defence as well as of attack. Assuming what the accused said was true, which was not, she exceeded the limit of lawful self-defence. Accused was tired of her husband. There was a design to effect death which was believed in a cruel manner with a dangerous weapon. With a wooden hammer or mortar pestle, Exhibit ‘A’, the accused battered the head of her husband to death which was sudden and instantaneous.

From the evidence before me, accused struck the husband twice in the head with considerable violence. The husband had not offered real violence to her, the accused struck in anticipation to a non-threatened act of violence. The husband did not aim the matchet at her when she struck. She did not strike in the course of a quarrel. The husband was already in bed with eyes closed and backing the aggressor. It did not happen accidentally; she struck twice on a vital human organ like the head inflicting a very disproportionate injury. A person who wittingly inflicts such grievous bodily harm must know that she is endangering life or would likely cause death.”

It is clear the trial Judge was explaining how he could have presumed that a plea of self defence was made out; all he had as evidence before him was a sudden disagreement which had ended when the deceased retired to sleep. He did not believe the deceased was about to attack the appellant. The Court of Appeal certainly saw the reasoning was not perverse. The evidence of P.W. 1, appellant’s son, was clear and cogent and the trial court believed him. Court of Appeal found no reason to interfere with the finding.

For defence of self-defence there must be clear and unambiguous evidence before Court of trial that the victim was attacking or about to attack the appellant in a manner that grievous hurt and or death was possible and had to defence himself; that the self defence was instantaneous or contemporaneous with the threatened attack; and that the mode of self-defence was not greater or disproportionate with the threatened attack. In all murder cases it is incumbent on trial court to consider all defences put up by the accused expressed or implied in the evidence before the court including self-defence, provocation and even insanity and alibi. However trivial, the defence must be looked into and that is precisely what the trial judge did in his style by explaining what he would normally look for in a situation availing the appellant right of self-defence in law. It is however a different thing if trial court merely conjectures [Akpankere Apishe & Ors. v. The State (1971) All NLR 50; Okpere v. The State (1971) All NLR 1.

It was submitted that there were contradictions in the evidence of the prosecution. With greatest respect to learned counsel for the appellant, what he pointed out as contradictions are not contradictions and they do not at any rate touch on the substance of the case. Certainly this case is far from being on all fours with Onubogu v. The State (1974) 9 SC.1; Queen v. Isa (1961) All NLR 668, 671.

For the foregoing reasons I find no merit in this appeal and I accordingly dismiss it. I affirm the judgment of the Court of Appeal which upheld the conviction and sentence of trial court under S. 319 (1) Criminal Code Law of Anambra State.

Other Citation: (1993) LCN/2537(SC)