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18th October, 1972.

SUIT NO. SC 178/1971.

3PLR/1972/3 (SC)


(1972). NSCC Vol. 7









  1. A. Akinola for the Appellant.
  2. Mbrey-Bassey, Senior State Counsel, South- Eastern State, for the Respondent.



CRIMINAL LAW AND PROCEDURE:- Murder – Proof – When the defences of provocation, self-defence, defence of property, and automat­ism will avail an accused person – Evidence of spouse of accused person – Whether necessary to distinguish between the spouses of a Christian and a non ­Christian marriage in respect of criminal liability

CHILDREN AND WOMEN LAW: Women and Murder – Women in Business (Farming) – Separate control of farms by spouses – Murder of wife by husband over dispute relating to yam harvest of separately owned farms – How treated

PRACTICE AND PROCEDURE:- Evidence relevant for criminal liability – Whether necessary to distinguish between evidence of Christian and non-Christian spouse

RELIGION AND LAW:- Nature of marriage and criminal proceedings – Whether it is relevant to distinguish the evidence of a spouse of a Christian marriage from other spouses in respect of criminal liability




ELIAS, C.J.N. (Delivering the Judgment of the Court):

This is an appeal from the judgment of Inyang, J. in which the accused, Ajor Achimi, was convicted at the High Court, Ogoja, of the murder of his wife, Email Oka, on January 17, 1971, at Ukprinyi village, Utugwang-Ogoja, in the Ogoja Judicial Division, contrary to section 319(1) of the Criminal Code Law, Cap. 30 of the Laws of Eastern Nigeria, 1963. When we heard the appeal on August 14, 1972, we dismissed it as without merit, and we now give our reasons.


The facts were that the accused and the deceased had been married some two years and been living as husband and wife in the compound of Abuba Achang (P.W.3) when the incident took place on January 17, 1971 at the farm of the ac­cused who gave a portion of it to the deceased in which to plant her own crops. The farm was about 2 miles from the village, and there was a hut in which were two heaps of yams, one belonging to the accused and the other to the deceased. Both left the village together for the farm that morning, did their harvesting of yams in their respective portions of the farm and carried them to their separate heaps in the hut. While the accused was about 110 yards at one end of the farm he noticed that his wife was removing some yams from his own heap into her own; he quick­ly returned into the hut and challenged the deceased about the removal of the yams, which she denied. A struggle ensued during which the accused deposed that he was twice knocked down by the deceased (a hefty woman of about the same height as himself) before he reached for his matchet (exhibit 2) with which he cut the deceased in several parts of her body until she died lying on top of her own heap of yams.


The accused then hurried home to tell P.W.3 what had happened before he went to the police at Ogoja to report the incident. Meanwhile, P.W.3 visited the scene of the incident, saw the corpse of the deceased inside the hut and reported the matter to Simon Obu, P.W.2 who then reported it to the Obudu Police. Akpan Effiong, P.W.5, was thereafter assigned by the Obudu Police to investigate the case, and the Ogoja police gave Akpan Daniel, P.W.6, the same assignment when the accused reported himself at their station. P.W.5 recovered from the house of the accused a matchet (Exhibit 2) and its sheath (Exhibit 2A); he found the matchet covered with blood stain; at the farm, he saw the body of the deceased at the farm, he saw the body of the deceased lying on a heap of yams, and observed matchet cuts on the back of the head and neck as well as the deceased’s left shoulder. With the help of some villagers he removed the corpse to the village where he met the accused with the other team of investigating police constables. He thereupon handed the case over to P.W.6 together with the corpse of the deceased, the mat­chet and its sheath. When P. W.6 later visited the hut at the farm in the company of the accused, he saw the two heaps of yams on one of which were blood stains. Before the visit, the accused had made a statement to P.W.6 at Ogoja through an interpreter, Felix Mateve (P.W.7), in the Obudu language, and that statement was admitted at the trial as Exhibit 3. When P.W.6 asked the accused about the mat­chet mentioned in the statement, the accused said he could not remember where he kept it. On their return to Ogoja, the accused made a second statement to P.W.6 through P.W.7 again in the Obudu language, and this was admitted as Exhibit 4.


The accused was taken before P.W.8, an Assistant Superintendent of Police, to whom he confirmed having made the statements contained in Exhibit 3 and 4 under caution and voluntarily, as recorded in Exhibit 5 (Police Form for Confessional Statements).


The sister of the deceased, Ogenyi Oko, P.W.4, identified the deceased’s body to Edet Udo Uyere Nya (P.W.1), the Senior Medical Officer in charge of the Ogoja General Hospital, and to P.W.6. A post mortem examination of the body was per­formed by P.W.1 who reported these findings:

“Externally: It was the partially decomposed body of a woman with some blis­ters on the trunk. There was a large gaping wound on the left side of the neck showing repeated cuts with a fairly sharp instrument. This neck wound measured about 5 inches long obliquely and about 4 inches vertically with the inferior and about the plane of both shoulders. It penetrated deep into the cer­vical vertebrae. There were no apparent fracture or fractures of the skull or any of the limbs. There were two jagged wounds on the left shoulder meeting superiorly the upper one measuring 4 inches long by 2 inches wide and the lower 7 inches long by 2 inches wide resulting in a skin flap. The upper wound went deep into the humeroscapular joint.

Internally: Dissection of the neck revealed that the large cut penetrated the left side of the neck superiorly to just below the second cervical vertebrae and in­teriorly to the fifth cervical vertebrae. The third and fourth cervical vertebrae with the corresponding portion of the spinal cord which passed through them, were missing. All other vital organs – nerves, the left carotid arteries, the jugular veins all on the left side of the neck had been severed. The skull, chest and abdomen with their contents were apparently intact. I certify the cause of death in my opinion to be due to traumatic transection of the left carotid arteries, left jugular veins and the spinal cord. It must have been a very sharp instrument used with adequate force that would have caused the wounds. It could be a matchet. After examination of the body, I issued post- mortem report. This is the post-mortem report. Tendered. No objection. Admitted and marked Ex­hibit 1.”

and under cross-examination, the first prosecution witness said that:

‘The condition of the body was partially decomposed when it was brought to me for examination. After putrefactive decomposition has started it becomes difficult to say whether the deceased was healthy and strong before her death.”


After the learned trial Judge had carefully reviewed the evidence of the pros­ecution witnesses, especially that of the 2nd, the 3rd, the 5th and the 6th, he found as follows:

‘The blood stain on the heap of yams belonging to the deceased in the hut where the body of the deceased was found lying coupled with the blood stain found on Exhibit 2 and the confessional statement made by the accused in Ex­hibit 4 that Exhibit 2 was his matchet which he (the accused) used in matchet­ing the deceased, leaves no doubt in my mind that the accused dealt matchet cuts on the deceased. Moreover, the evidence of the first, fifth and sixth pros­ecution witnesses of the position of the matchet cuts on the body of the de­ceased confirms this view.”


As regards the sudden struggle between the accused and the deceased in the hut, the trial Judge observed:

“Assuming that the story of the accused is true that the deceased attacked him, gripped him and knocked him on the ground twice and continued attacking him, one would ask the question whether a peaceful and good housewife, like the deceased, as described by the accused himself which I have referred to earlier could all of a sudden pick up courage and develop the great strength to attack and overpower and knock her husband (the accused) on the ground, so easily, twice. Moreover, the accused had dangerous weapons, his matchet (Exhibit 2) and his hoe, within his reach inside the hurt. I must say that I was not impressed when the accused said that the deceased was stronger than him­self. That the deceased was very strong and of good health at the time of their scuffle is no reason to make me believe that she was able to over-power the accused in the scuffle and knock him on the ground twice. The fact that she was in good physical health strengthens the allegation that the deceased was killed by the accused in cold blood.”


The defences of provocation, self-defence, defence of property, and automat­ism offered by the accused were, in our view, rightly rejected by the trial Judge who observed inter alia:

“Obviously, the provocation causing the scuffle was not at the instance of the accused, if there was any provocation at all. Assuming that the deceased provoked an ordinary person, as she did to the accused, and knocked him down twice and further attacked him, could it be said that that act of the deceased was sufficient to deprive the ordinary person of the power of self ­control and to induce him to assault the deceased with matchet cuts in retaliation?”


The learned trial Judge concluded as follows:

“The accused, in my view, must have intended the natural and probable consequences of his act, three deep and brutal matchet cuts, which in the present case, caused traumatic transection of the left carotid arteries, left jugular veins and the spinal cord of the deceased resulting to her death. The accused must have undoubtedly had the foresight, in the circumstance, that dealing matchet cuts on the body of the deceased would or might result in the death of the deceased. I dismiss the plea or defence that there was no mens rea proved.

I am satisfied that there is clear evidence, particularly that of the first prosecution witness, the doctor, that the death of the deceased was the direct result of the matchet cuts the deceased received from the hand of the accused causing her grievous harm and subsequent death and to no other cause.”


Mr. E. A. Akinola, learned counsel for the appellant, asked for leave and was granted it to argue and did argue the following 5 additional grounds of appeal in substitution for the original 9 grounds:

“1.     The learned trial Judge erred in admitting in evidence the statements of the Appellant (Exhibits 3 and 4) whilst considering the manner it was recorded by the Police, it is not in accordance with Police Rules of Practice.

  1. The learned trial Judge erred by rejecting the plea of self-defence available to the Appellant when there is abundance of material evidence showing:

(a)     a struggle or fight between the Appellant and the deceased;

(b)     that the deceased was fat and strong;

(c)     that she knocked the Appellant on the ground two times;

(d)     that the Appellant suffered from hernia at the time of the struggle;

(e)     that the Appellant became unconscious when the deceased knocked him down; and

(f)      that on gaining consciousness, the deceased held him by the waist; the only possible inference to be drawn was that the Appellant had no opportunity to retreat from the fight.

  1. The learned trial Judge erred on the plea of provocation by failing to give sufficient consideration to the facts of assault on the Appellant by the de­ceased, but rather he wrongly directed himself by construing what in law amounted to loss of self-control as mere ‘annoyance’
  2. The learned trial Judge erred in holding the view that the plea of provoca­tion has effect on the plea of self-defence, since both pleas are never inter­related. The learned trial Judge has therefore wrongly confused his mind on the facts distinguishing provocation with self-defence, by saying inter alia at page 83 11. 30-31:

“I will consider the effect of this provocation in self-defence………..’

  1. The learned trial Judge erred in law in holding the view that in a Christian marriage, a wife cannot be liable for criminal or civil assault on her husband except in the latter case (civil assault) only in divorce action.”


After trying unsuccessfully to argue grounds 1 and 2 separately, Mr. Akinola chose to abandon them, as indeed he did with ground 4. In respect of ground 3, he referred us to the following passage from Nwamgbo Okpozo v. The State (1966) N.M.L.R. 1 in support of the distinction between “provocation” and “annoyance”:


On the issue of provocation, the learned trial Judge was satisfied that the action of the deceased in destroying the appellant’s pot of wine and circumstances leading up to it could amount to provocation on the appellant. We do not share the view of the learned Judge on the issue of provocation. In our view, the destruction by the deceased of the pot of palm wine could, even on a view of the evidence most favourable to the appellant whom the learned Judge regarded as unsophisticated only have ‘angered’ the appellant: the action of the deceased was not enough to sustain a plea of provocation under section 318 of the Criminal Code; and in any event the plea was not available to the appellant as there was time enough for his passion to cool.”


We think that this passage is, if anything, against the appellant’s defence of provocation.


We find the fifth ground argued by the learned counsel for the appellant wholly irrelevant to the issue of the guilt of the appellant in this case, as the attempt made by the trial Judge to distinguish between the spouses of a Christian and a non ­Christian marriage in respect of criminal liability is, in our view, unnecessary in ex­planation of his rejection of the defence of property rights.


For these reasons we dismissed the appeal.


Appeal dismissed.



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