GRACE BOMS (APPELLANT)
THE STATE (RESPONDENT)
(1971) All N.L.R. 335
Division: Federal Supreme Court
Date of Judgment: 10th December, 1971
Case Number: SUIT NO. S.C. 233/1971
Before: Coker, Madarikan, Sowemimo, JJ.S.C.
Appeal from the High Court (Rivers).
(1) An accused person who raises a defence of self-defence is entitled to have that defence considered fully and adequately by the court.
In this case the trial Judge failed to consider that defence adequately as no where in his judgment did he make any specific finding of fact on the most vital issue-whether he believed that the accused stabbed the deceased when he gripped her firmly on the throat and in circumstances in which the accused could avail herself of the provisions of section 286 of the Criminal Code. Consequently the conviction could not be allowed to stand.
(2) But as the Supreme Court was not in a position to make the findings which the trial Judge who saw and heard the witnesses should have made, the proper order to make in the circumstance was one for a retrial.
Appeal allowed: Conviction and sentence quashed: Case remitted to High Court for retrial before another judge.
APPEAL from the High Court (Rivers).
SUIT NO. S.C. 233/1971.
Akinrele for the Appellant.
Lucile, Senior State Counsel, for the Respondent.
Madarikan, J.S.C. (delivering the judgment of the court):-In Charge No. PHC/270/70 in the High Court, Port Harcourt, the accused was charged with the murder of her adopted son, Levi Boms, and on the 14th July, 1971, she was convicted of murder and sentenced to death. This is an appeal against her conviction.
At the trial, it was common ground that the deceased was an adopted son of the accused under native law and custom; that she bore the expenses of marrying a wife for the deceased; that on the 5th July, 1970, the accused stabbed the deceased with a knife; and that he died as a result of the injuries sustained by him.
According to the prosecution, the incident which led to the stabbing of the deceased was that on the day in question, the deceased asked his sister, Joyce Boms (P.W. 3), to fetch some salt for him. As she (the sister) was at the time busy eating, she asked another person to give salt to the deceased. The deceased then demanded an explanation from her as to why instead of bringing salt to him as requested, she sent someone else to bring it; and he slapped her. At this stage, the accused came out of her room and asked why he had slapped Joyce. It would appear that the deceased did not take kindly to her intrusion; and, to make matters worse, the accused hit the deceased on the head with a bottle. The deceased became annoyed and wanted to retaliate but was pacified by people who were around. The accused then taunted the deceased by saying that he was suffering from hernia. The deceased retorted and stated that as the accused was in the habit of abusing him that he was suffering from hernia, he would demonstrate that he did not have hernia by stripping himself naked. As he was about to go to the accused, he was held back by some people, but he broke through and on getting to the accused, she stabbed him twice in the chest and he collapsed and died on the spot.
In her statement to the police (exhibit 2), the accused gave an account of certain altercations between her and the deceased at a time when she was peeling a plant called "URI" with a knife; and she continued by saying:-
"As he drew me out to beat an him I chook him the knife in my hand. I no know when the knife chook him for body. Na two times I chook him."
She however testified in court that certain facts were left out of her written statement (exhibit 2). According to her, one of those facts was that:-
"On the fateful night members of the family-four of them, Rosaline Boms (prosecution witness 4), Nwannedia Boms, Catherine Boms, and prosecution witness 1 tried to dissuade the deceased from coming to molest me and they showed their disapproval by pushing him away and beating him; but I failed to lock the door of my house hence the deceased got entrance, gripped me and held me by the throat. As I was held by the throat I was almost at the point of death. It was at this juncture that I stabbed the deceased in defence of myself."
In concluding her evidence, she stated that she did not hit the deceased with a bottle at any time.
At the close of the case in the High Court, Counsel addressed the court on the possible defence of self-defence. The learned State Counsel, Mr Adoki, made the following submissions in this regard:-
"So in this particular case, even if we accept her plea of self-defence against the alleged grip of the deceased on her throat the use of a knife was clearly disproportionate to the harm expected."
In reply, the defence Counsel's submissions were as follows:-
"In our own case it was the act of strangulation on the accused that made her defend herself with a knife. At the time she used the knife it was the only thing in her hand, not that she picked it up from anywhere, or that she had kept it anywhere in anticipation of a second attack by the deceased."
"In this case the deceased, a soldier, rushed at the accused and held her by the throat and nearly stopped her breathing."
"Our main defence is that we acted in self-defence."
"The state of mind of the accused in this case at the time she was held firmly by the throat and she used the knife was that she reasonably believed that the deceased intended to kill her, and that she was engaged in a life and death struggle with the deceased."
In a reserved judgment, the learned trial Judge considered and rejected the defences of provocation and self-defences, which were raised by the accused; and, as stated earlier, he convicted the accused of murder.
At the hearing of this appeal, the only ground of appeal argued on behalf of the appellant was that the learned trial Judge erred in law in holding that the plea of self-defence was not made out.
It seems clear from the judgment that the learned trial Judge realised that it was necessary for him to consider the defence of self-defence. He said:-
"In regard to the defence of self-defence it is said that this accused struck the fatal blows twice with a sharp knife in defence of her life against the grip of the deceased. Deceased was alleged by this accused to have gripped her firmly on her throat and she had to use the knife on him because she reasonably believed that the deceased intended to kill her, and that she was engaged in a life and death struggle with the deceased."
But in our view, he failed to consider that defence adequately as no where in his judgment did he make any specific finding of fact on the most vital issue, that is, whether he believed that the accused stabbed the deceased when he gripped her firmly on the throat and in circumstances in which the accused could avail herself of the provisions of section 286 of the Criminal Code. We are satisfied that in none of the passages in the judgment to which we were referred by the learned State Counsel did the judge make a finding on this issue.
An accused person who raises the defence of self-defence is entitled to have that defence considered fully and adequately by the court. We are in no doubt that the learned trial Judge failed to do so in the instant case. We therefore cannot allow the conviction to stand. But as we are not in a position to make the findings which the learned trial who saw and heard the witnesses should have made, we consider that the proper order to make in the circumstances is one for a retrial.
In the result, the appeal is hereby allowed, the conviction and sentence are quashed. We shall and do hereby remit the case to the High Court, Port Harcourt, for a retrial before another judge.
Appeal allowed: Conviction and Sentence quashed:
Case remitted to High Court for retrial before another judge.