3PLR – NKWUDA NWELEBE V. THE QUEEN

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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NKWUDA NWELEBE

V.

THE QUEEN

FEDERAL SUPREME COURT OF NIGERIA

F.S.C. 453/1962

4TH APRIL, 1963

BEFORE THEIR LORDSHIPS:

SIR LIONEL BRETT, F.J. (Presided and Read the Judgment of the Court)

JOHN IDOWU CONRAD TAYLOR, F.J.

GEORGE BAPTIST AYODOLA COKER, AG. F.J.

REPRESENTATION:

1. A. COLE – for the Appellant.

I.C.E. IHEJETOH, Crown Counsel – for the Respondent.

MAIN ISSUES

CRIMINAL LAW AND PROCEDURE:- Murder – Defence of drunkenness – Whether evidence of drinking without more can avail accused of the de­fence – What accused must show.

CRIMINAL LAW AND PROCEDURE:- Witness for prosecution – Minor discrepancies in evidence of prosecution witnesses – Effect thereof

PRACTICE AND PROCEDURE – APPEAL:- Findings of fact by trial court-Attitude of appellate court.

MAIN JUDGMENT

BRETT, F.J. (Delivering the Judgment of the Court):         

The appellant was convicted of the murder of Amagu Opoke. According to the evidence both men arrived uninvited at an entertainment given by one Ugwu Akata to a number of elderly men of his village to mark the allocation of a piece of land to him for building. There was goat meat to eat and palm wine to drink, and the appellant and the deceased started to quarrel over a pot of palm wine. They were separated and the appellant appeared to be going away, as re­quested by Amagu Opoke, but he reappeared with a matchet belonging to one of the guests, Ofoke Oduburu, who had left it with his bicycle some dis­tance away, and attacked the deceased with it, wounding him in the chest and penetrating the heart. The deceased collapsed and died almost im­mediately; the appellant was disarmed and ran away.

There were minor discrepancies between the evidence of Ugwu Akata and that of Ofoke Oduburu, but none such as could not be explained by the fact that neither of them had any occasion to keep a constant watch on the two men concerned before the assault took place. Ofoke Oduburu was quite clear in his evidence that the appellant appeared with a matchet and at­tacked the deceased at a time when the deceased was displaying no hostile intentions towards him. We are not retrying the case, and we cannot over­rule the Judge’s finding that Ofoke Oduburu was an honest and reliable wit­ness. If his evidence is accepted, no question either of self-defence or of pro­vocation could arise, and the Judge was right not to consider these pos­sibilities seriously. There was some evidence that the appellant had been drinking, but, as the Judge pointed out, he gave a sufficiently detailed ac­count of what he said took place to dispose of any suggestion that he was too drunk to form an intention to kill.

The appeal is without substance, and is dismissed.

TAYLOR, F.J.:         I concur.

COKER, AG. F.J.:   I concur.

Appeal dismissed.