CASE IDENTIFICATION
EDITORIAL SUMMARY
Editorial — not part of the judgment as delivered
Facts of the Case
The appellant was tried in the High Court of Anambra State (Abakaliki Judicial Division) for the murder of her husband, Njoku Igboke, contrary to section 319(1) of the Criminal Code. The prosecution’s case, led through the evidence of their son (P.W.1), was that on 29th December 1977, after a quarrel over a meal, the deceased retired to sleep. While he lay on his mat, the appellant struck him three times on the head with a pestle, killing him instantly. The appellant then fled with the deceased’s matchet.
The appellant’s defence, contained in her voluntary statement and oral testimony, was that she acted in self-defence. She claimed the deceased had threatened to kill her with his matchet during the quarrel, and she pre-emptively struck him with the pestle. The trial judge preferred the prosecution’s version, believing the eyewitness account of P.W.1, and convicted the appellant of murder. Her appeal to the Court of Appeal was dismissed. She appealed further to the Supreme Court.
Issues for Determination
Whether the evidence adduced at the trial was sufficiently cogent to discharge the burden of proving the appellant’s guilt beyond reasonable doubt.
Decision / Holding
Appeal dismissed.
The Supreme Court affirmed the decisions of the lower courts. It held that the prosecution had proved its case beyond reasonable doubt, primarily on the credible and accepted evidence of the eyewitness (P.W.1), which was corroborated by the appellant’s own confession. The defences of provocation, accident, and self-defence were rightly rejected by the trial court. The conviction for murder and the sentence of death were upheld.
Ratio Decidendi
1. CRIMINAL LAW – Proof of Murder – Conviction May Be Based on Credible Testimony of a Single Eyewitness
“The trial court having accepted and believed the evidence of P.W.1 was entitled to proceed to convict the appellant on his (P.W.1) evidence alone. The law is that except where it is specifically provided by law, no particular number of witnesses shall in any case be required for the proof of any fact.”
Per Kutigi, JSC, in *Njoku v. The State* (1993) NLC-2091991(SC) at p. 16; Paras C–E.
2. CRIMINAL LAW – Defence of Self-Defence – Essential Elements Must Be Strictly Established
“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.”
Per Belgore, JSC, in *Njoku v. The State* (1993) NLC-2091991(SC) at p. 6; Paras B–D.
3. CRIMINAL LAW – Defence of Self-Defence – Mere Possession of Weapon by Deceased Is Insufficient
“It is certainly not the law that the possession of a matchet by the deceased without evidence of its use in an assault against the appellant entitles the appellant who killed with a pestle to the defence of provocation or self-defence. It is its use that determines whether or not provocation was offered by the deceased to the appellant or whether appellant's life was in danger.”
Per Kutigi, JSC, in *Njoku v. The State* (1993) NLC-2091991(SC) at p. 18; Paras A–C.
4. CRIMINAL LAW – Confessional Statement – Exculpatory Explanation Does Not Rob Statement of Its Confessional Nature
“Appellant's statement (EXHIBIT C) was a confession. She admitted killing the deceased although she said she did so in self-defence, or by mistake or on provocation.”
Per Kutigi, JSC, in *Njoku v. The State* (1993) NLC-2091991(SC) at p. 14; Paras D–E.
5. CRIMINAL LAW – Burden of Proof – Trial Court Must Consider All Defences Open to the Accused
“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…”
Per Belgore, JSC, in *Njoku v. The State* (1993) NLC-2091991(SC) at p. 6; Paras D–F.
Orders of Court
The appeal was dismissed.
The judgment of the Court of Appeal, which upheld the conviction and sentence of the trial court, was affirmed.
The appellant’s conviction for murder and sentence of death were confirmed.
APPEARANCES
Counsel for the Appellant(s)
Seyi Sowemimo
Counsel for the Respondent(s)
O'Connell Ogbonna, Legal Officer, Ministry of Justice, Enugu State
Amicus Curiae
None
JUDGMENTS / OPINIONS OF THE COURT
Authoritative judicial text as delivered
Lead / Majority Opinion
— (DELIVERED BY BELGORE, J.S.C. (DELIVERING THE LEAD JUDGMENT): )
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 bone’s 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
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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 occured 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 hemorrhage 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
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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
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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
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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
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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 S.C. 1; Queen v. Isa (1961) All NLR 668, 671.
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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.
Concurring Opinion(s)
— KARIBI-WHYTE, J.S.C.:
I agree entirely with the reasoning and the conclusion of my learned brother, Belgore, J.S.C. in this appeal dismissing the appeal of the Appellant. The evidence before the court did not support the defences of provocation or self-defence raised on behalf of the Appellant. It was a clear case of calculated cold blooded murder perpetrated by a wife on her husband. There is no merit whatsoever in this appeal.
— KAWU, J.S.C.:
I have had the privilege of reading, in draft, the lead judgment of my learned brother, Belgore, J.S.C. which has just been delivered. I am in complete agreement with his reasoning and also with his conclusion that the appeal is completely devoid of merit and should be dismissed.
It is plain on the evidence adduced that it was the act of the appellant that caused the death of the deceased – her husband. She made a confessional statement to this effect (Exh. C) and confirmed the same in her evidence in court. Her confession was corroborated by the evidence of P.W.1 who was an eye witness to the incident. The defences of provocation, accident and self defence were in my view, rightly rejected by the learned trial Judge. On the totality of the evidence, I am satisfied the appellant
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was properly convicted. The appeal is dismissed and the appellant’s conviction and the sentence of the death imposed on her are hereby confirmed.
— OMO, J.S.C.:
This is an appeal against the affirmation by the Court of Appeal of the conviction and sentence of the appellant for the murder of her husband by the Anambra State High Court.
The appellant who admitted hitting the deceased with several blows of a mortar pestle delivered on his head, claimed to have in self-defence because she only struck the deceased after he had threatened to kill her with the matchet he had beside him as he slept on his mat. This defence was belied by their 18 year old son whose evidence was that the deceased (his father) was the victim of an unprovoked and surreptitious attack by the appellant (his mother).
The sole issue raised for determination in this appeal is whether the evidence adduced at the trial was sufficiently cogent to discharge the burden of proof by the prosecution, which is proof beyond reasonable doubt. Before coming to the conclusion that the answer to the issue raised is in the affirmative, my learned brother Alfa Belgore, J.S.C. in his lead judgment which I have previewed in draft, has considered the evidence led before the trial court. He found that there was cogent evidence before the trial court on which it properly relied in deciding that the offence charge was committed by the appellant.
I entirely agree with the conclusion of my learned brother,
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and for the reasons set out in his judgment, that there is no merit in this appeal. I adopt the reasons conclusions of that judgment as mine. Accordingly I also dismiss this appeal, and affirm the judgment of the court below.
— KUTIGI, J.S.C.:
The appellant was at the Abakaliki High Court charged with the murder of her husband NJOKU IGBOKE contrary to section 319(1) of the Criminal Code Cap. 30 Vol. II, Laws of Eastern Nigeria, 1963. She was convicted and sentenced to death.
At the trial the prosecution called five witnesses to prove its case, only one of them Igboke Njoku, the son of the marriage, was an eye witness. He testified as P.W.1. He narrated the events as he saw them on pages 4 – 5 of the record as follows:-
“Njoku Igboke was my father and he is now dead. On 29/12/77 morning I went to shoot at birds in the bush with my catapult string. When I came home I met my parents in house. My mother, the accused served me lunch and as I was eating my father demanded his own. When he was served his own by the accused, 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. Later my parents and I retired to sleep in the same apartment. I lay on the same mat with my mother whilst my father lay on another mat opposite us. None of us had yet slept when my mother got up and picked up the pestle with which we wedge our door leading outside and dealt three blows with it on my father’s head. At the time the blows landed, my father was
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facing away from us with his eyes closed. My father groaned and his legs stretched out as he became motionless. The accused immediately dropped the pestle and picked up my father’s matchet which he always kept by his side whenever he was sleeping, and ran away.
I started to cry and went and invited my elder sister who was being married in the neighbourhood. My sister’s name is Ofoke Njoku. She followed me to our compound, raised alarm which attracted people from the neighbourhood. Our people searched for the accused but could not find her. The following morning the police was invited and the corpse of my father was taken away to the hospital mortuary.”
Police Inspector Michael Eke (P.W.3) investigated the case. The appellant took him to the scene of the crime. Inside a hut he saw the body of the deceased with the head completely smashed. The appellant gave him the pestle she said she used on the deceased. The pestle was admitted in evidence as Exhibit A. He also recovered a matchet, Exhibit 8 from the scene. The appelant later volunteered a statement under caution which was also admitted as Exhibit C in the proceedings. He later collected post mortem examination report, Exhibit D, from Abakaliki General Hospital.
Only the appellant testified in her own defence at the trial. She called no witnesses. In her evidence before the court she admitted killing the deceased but contended that she did so on provocation or by mistake or in self defence. Her evidence on page 15 of the record reads in part –
“He started to talk harshely to me and when I answered back he took up his matchet and said he will give me a
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cut in the mouth to make me shut up. He said I was his commodity and he bought me with his money and he could even kill me. I then picked up a pestle in readiness to ward off his matchet if he tried to give me the threatened cut. I did not wait for him to cut me before I landed two pestle blows on his head, he fell down and fainted. I tried to raise him up but he was unconscious and dead.”
In her statement to police (Exh. C) she stated inter alia –
“He told me that I cooked but only kept the bones for him to eat. I told him to forgive that by the following day I would buy another fish to cook for him. He said that both of us would die. He then took his matchet to cut me, I quickly went to a corner of the house and got hold of a pestle. I gave him two hits by the side of the head and he fell down and died.”
The learned trial judge carefully reviewed the evidence on
Dissenting Opinion(s)
None
REFERENCES
Research enhancement — dynamically linked
Referenced Judgments
Abaghor v. Police (1961) 1 All NLR 850 (Cited at P. 17; Para D)
Akosile v. The State (1972) 5 SC. 332 (Cited at P. 14; Para A)
Akpankere Apishe & Ors. v. The State (1971) All NLR 50 (Cited at P. 6; Para E)
Alhaji Barau v. B.G.C.E (1982) 10 S.C. 48 (Cited at P. 18; Para D)
Boms v. The State (1971) 1 All NLR 334 (Cited at P. 13; Para B)
Grace Bonis v. The State (1971) All NLR 334 (Cited at P. 3; Para C)
Kato Dan Adamu v. Kano N.A. (1956) 1 FSC 25 (Cited at P. 16; Para D)
Nwede v. The State (1985) 12 SC. 32 (Cited at P. 14; Para D, P. 18; Para C, P. 19; Para A)
Okpere v. The State (1971) All NLR 1 (Cited at P. 6; Para E)
Onubogu v. The State (1974) 9 S.C. 1 (Cited at P. 6; Para E, P. 14; Para A)
Queen v. Isa (1961) All NLR 668 (Cited at P. 6; Para E, P. 14; Para A)
R. v. Onakoya (1959) 4 FSC 150 (Cited at P. 19; Para B)
The State v. John Umunu (1968) NMLR 15 (Cited at P. 18; Para C)
Referenced Statutes
• Criminal Code Law of Anambra State: Section 319(1) (Cited at P. 1; Para A, P. 7; Para E, P. 9; Para A).
• Criminal Code Cap. 30 Vol. II, Laws of Eastern Nigeria, 1963: Section 319(1) (Cited at P. 9; Para A).
• Evidence Act: Section 137 (Cited at P. 16; Para C).
• Evidence Act: Section 178 (Cited at P. 16; Para E).