Plea of provocation based on witchcraft cannot stand SC

The facts of the case, as can be gleaned from the record, include the following:-

On the 4/3/98, one Bartholomew Ivo went with his fellow townsmen from Ohazara town, Ebonyi State who settled in Issele-Uku town, Delta State to console the appellant over the death of his two year old son and assist in the burial. Appellant and his townsmen belong to the same town association with the deceased.

During the burial, there was an alleged misunderstanding between appellant, his wife and the deceased arising from a previous action of the deceased by allegedly throwing charms at appellant with a curse that appellant’s two sons will die; that it was the night following the incident that the two-year-old boy died in a mysterious circumstance.

It is in the above circumstance that the deceased is alleged to have taunted appellant during the burial activities by saying, “I think I told you that you will see,” and making jest of the appellant by placing his fingers on his eyes as a result of which appellant went into his room brought out a cutlass/machete and struck the deceased on the head and stomach and the deceased collapsed and was rushed to hospital at Issele-Uku but later transferred to the general hospital, Asaba, where he later died on 9th March, 1998.

Appellant was arrested and charged with the offence of murder and he volunteered a statement in which he admitted inflicting the machete cuts on the deceased. Following his trial, appellant was found guilty and convicted of the offence of murder and sentenced accordingly. Being dissatisfied with the judgment, appellant appealed to the Court of Appeal, Benin Division in appeal No. CA/B/183c/2007 which appeal was dismissed by the court in a judgment delivered on the 4th day of March, 2010 resulting in the instant further appeal to this Court, the issues for the determination of which have been identified by A.A. ADEDEJI ESQ, Counsel for the respondent are crafted as follows:-

Whether on the totality of evidence adduced, the learned justices were right in holding that prosecution proved the case beyond reasonable doubt.

Whether the defence of provocation availed the Appellant on the facts and circumstances of this case?”

A point to be noted from the onset is the fact that from the issues formulated for determination by both counsel and reproduced the appeal is on the facts of the case and consequently on different findings of facts.

It is very important to note that appellant does not deny macheting Bartholomew Ivo on the day in question neither is he contending that the said Bartholomew Ivo he so macheted is still alive while he is being charged with his murder! His argument, which is nothing but the acts of a drowning man clinging to anything, including a straw, is that the dead body on which a post mortem examination was performed by the doctor who testified as PW4, has not been proved beyond reasonable doubt to be that of Bartholomew Ivo.

The above submission has been made despite the fact that the body was identified by a brother of late Bartholomew Ivo to the medical Doctor who performed the autopsy and subsequently issued a medical report as to the cause of death to be that of Bartholomew Ivo!

It is also the contention of appellant that no death certificate was tendered by the respondent to establish the death and cause of death of Bartholomew Ivo. The submission is very much misconceived in view of the autopsy report by PW4 which was tendered and admitted as exhibit “A” which also contains the cause of death of the deceased.

PW4, the medical Doctor who performed the autopsy and issued exhibit “A” testified as follows:-

“I performed an autopsy on the fresh body of one Bartholomew Ivo, upon examination, I found that the abdomen was distended with fluid, there were severe injuries on the body of the stomach; the right lobe of the liver and the small intestines. The abdominal cavity contained blood clots. The primary cause of death was by abdominal stab wounds with severe injuries to the liver, stomach and the intestines. Secondary causes are massive internal haemorrhage and eventually the deceased died of shock.”

The above finding by the Doctor as to where the deceased sustained the injuries that led to his death is consistent with the statement of appellant, exhibit “B” where he stated, at page 84 of the record inter alia thus:

“I was annoyed and with that annoyance I rushed into my room and took cutlass and cut him in his stomach.”

Appellant had identified the instrument of death, as follows:

This is the cutlass I used on Bartholomew

Secondly, appellant has not suggested that the real Bartholomew Ivo is alive and well somewhere while he stands trial for his alleged murder.

On the second issue, it is the submission of learned Counsel for appellant that a clear case of provocation is made out in the record and that the said defence avails appellant, which defence was glossed over by the lower courts; that there is evidence that the deceased dropped a substance said to be a charm a night before the death of appellant’s son, in the house of appellant and cursed appellant to the effect that appellant’s two sons would die one after the other; that one of appellant’s two sons died the following night of the incident; that while the child was being buried, the deceased (Bartholomew Ivo) taunted appellant by saying – “I think I told you that you will see” thereby making jest of appellant; that appellant reacted immediately by getting hold of his cutlass and striking Bartholomew Ivo with it.
To be continued