IN THE HIGH COURT OF IMO STATE
IN THE MBAISE JUDICIAL DIVISION
HOLDEN AT HIGH COURT OF JUSTICE, AHIAZU MBAISE
ON THE 29TH DAY OF MARCH 2021
BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA
CHARGE NO. HAM/50C/2017
THE STATE
VS
- EMEKA EMMANUEL UFOMBA
- IFEANYI CHRISTIAN
By information filed on 23-01-2017 the Defendants were charged as follows:
STATEMENT OF OFFENCE (COUNT 1)
Conspiracy to commit Felony Contrary to Section 516 A (a) of the
Criminal Code Cap 30 Vol. II Laws of Eastern Nigeria, 1963 as Amended by Edict No. 5 (a) of 1971 Laws of East Central State of Nigeria, applicable in Imo State.
PARTICULARS OF OFFENCE
EMEKA EMMANUEL UFOMBA, IFEANYI CHRISTIAN and others now at large on or about the 9th day of October, 2016 at Umuezereugwe, Nnarambia Ahiazu Mbaise in the Ahiazu Mbaise Judicial Division did conspire amongst yourselves to commit felony to wit: CAUSING GRIEVIOUS HARM.
STATEMENT OF OFFENCE (COUNT 2)
CAUSING GRIEVIOUS HARM Contrary to Section 332 (1) of the Criminal Code cap 30, Vol. II Laws of Eastern Nigeria 1963 as applicable in Imo State.
PARTICULARS OF OFFENCE
EMEKA EMMANUEL UFOMBA, IFEANYI CHRISTIAN and others now at large on or about the 9th day of October, 2016 at Umuezereugwe, Nnarambia Ahiazu Mbaise in the Ahiazu Mbaise Judicial Division did with intent to maim, disfigure or disable one Helen Onuabuchi Egwim hit her with an iron rod on her fore-head and right wrist hand causing her grievous harm.
STATEMENT OF OFFENCE (COUNT 3)
Conspiracy to commit Felony Contrary to Section 516 A (a) of the
Criminal Code Cap 30 Vol. II Laws of Eastern Nigeria, 1963 as Amended by Edict No, 5 (a) of 1971 Laws of East Central State of Nigeria, applicable in Imo State.
PARTICULARS OF OFFENCE
EMEKA EMMANUEL UFOMBA, IFEANYI CHRISTIAN and others now at large on or about the 9th day of October, 2016 at Umuezereugwe, Nnarambia Ahiazu Mbaise in the Ahiazu Mbaise Judicial Division did conspire amongst yourself to commit felony to wit: CAUSING GRIEVIOUS HARM.
STATEMENT OF OFFENCE (COUNT 4)
CAUSING GRIEVIOUS HARM Contrary to Section 332 (g) of the Criminal Code cap 30, Vol. II Laws of Eastern Nigeria 1963 as applicable in Imo State.
PARTICULARS OF OFFENCE.
EMEKA EMMANUEL UFOMBA, IFEANYI CHRISTIAN and others now at large on or about the 9th day of October, 2016 at Umuezereugwe, Nnarambia Ahiazu Mbaise in the Ahiazu Mbaise Judicial Division did with intent to disfigure unlawfully cast or poured fuel substance all over the body of one Onyinyechi Egwim with the intention to set him ablaze.
The charge was read and explained to the Defendants in the language each of them understand and each understood perfectly and each pleaded not guilty to the 4 counts
To prove the case against the Defendants, the Prosecution called 7 witnesses while the 2nd Defendant testified on behalf of the Defendants as DW1. They did not call any other witness.
PROSECUTION’S CASE
The PW1 Onyinyechi Egwim testified that on 9-10-16 he was going to church and saw the Defendants in his father’s farm and he stopped and enquired from them what they were doing in his father’s farmer and the chased him away with machete. He reported to the police police came to serve them with invitation for interview on the morrow being Monday. When the police left and he discovered it was late to go to church he decided to go to his shop. He was stopped on the way by the defendants who beat him with rod. In the process the 2nd Defendant poured fuel on him and wanted to set him ablaze but for the intervention of people that has gathered. When the fuel was poured on him he shouted and this attracted his mother who came. Immediately the 2nd Defendant sighted her he rushed her and hit her with the rod on the head and on second attempt of heating her she put her hand forward in defence and the 2nd defendant hit her on the wrist. The mother fainted and was carried to the hospital unconscious. The PW1 was thoroughly cross examined.
PW2 Helen Egwim the mother of the PW1 testified that while coming back from the church she heard the defendants talking with her son- PW1 in the farm. And that he was asking them what they were doing in the farm but they pursued him with machete. He went and reported to the police. When the police came and he told them to come to the station on Monday. The Police went back and Onyinyechi turned to be going to church. Suddenly she heard people shouting. She ran out and immediately the 2nd Defendant sited her he used rod and hit her on the right hand. She fell down and he hit her on the head. She fell down and became unconscious. She did not even know when she was taken to the hospital. She was thoroughly cross examined
PW3 My name is Felix Nkejika Oledimma testified that he was driving to her maternal home when he got to a point saw people fighting. She stopped and discovered they are people he knew. He saw the PW1 and the defendant dragging at each other. He tried persuading the parties not to engage in the fight. Then unexpectedly he saw the 2nd defendant splashed fuel on the PW1and brought out marches to set him ablaze but people stopped him. Fight ensued. The PW2 mother of the PW1 came out from the house and was sitting by the shop beside their house calling on Onyinyechi PW1 to come back home with the sisters. The 2nd defendant ran home, came out with an iron rod pursued the PW1 who ran. So 2nd defendant went to where PW1’s mother was sitting and hit her with the iron. They now carried the PW2 in his vehicle, went to Ahiazu Police Station and from there to the hospital. He was cross examined.
PW4- Ogechi Umunnakwe testified that on 9-10-16 Sunday. He was in his yard and started hearing noise. He wanted to go somewhere so he took his motorcycle and drove to the road side and saw people gathered. There was a place I wanted to go so I took my motor cycle and drove to the road side. As I got there, I saw people gathered. He saw PW1 robbing his hands on his face. He asked what happened and they told him that 2nd Defendant poured fuel on him. Along the line the PW2 was coming out from the house, the 2nd Defendant took a rod and hit her on the head. She fell down. PW3 brought his motor with which the PW2 was taken to the Hospital. He was crossed examined.
PW5: Dr Chike Nathaniel a medical doctor of Chinyere Clinic and Maternity testified that the PW2 was brought to the hospital unconscious sometimes in 2016. She was bleeding and with deep cut at right wrist and forehead. She was resuscitated and treated for about two weeks. She was discharged on 26-10-16 and she was placed on monthly visit for three months. After my treatment of her I put it in a report. This is the report. He was cross examined.
PW6: Sgt Timothy Ohanaka testified that within the month of October 2016 he was serving at Area Command Owerri. Through a written petition addressed to COP Imo State Command dated 11- October 2016 by PW1 endorsed to Area Command Owerri for investigation he was detailed to investigate and report. The case file was transferred from Ahiazu Police Division. On the 25-10-16 the Divisional IPO transferred the case file alongside with two suspects, the complainant and two iron exhibits. Reaching on 26-10-2016, a team of Police men went to Chinenye Clinic where the victim was on hospitalization as the result of injury she sustained. We recorded her voluntarily at her hospital bed and also met the doctor in charge of her treatment. The complainant also presented a cloth as an exhibit and parties were interviewed. They visited scene of crime in the company of parties before the matter was recommended for court.
PW7 CPL Ichie Paul testified that on 9-10-16 he was attached to Ahiazu police station. The PW1 came to the Police Station and reported that Ifeanyi Ufomba and Emeka Ufomba forcefully entered into their land and started building a store. Also stated that they threatened him not to come there or else they will deal with him. After reporting to the DPO, the DPO detailed him to go and invite the parties. When he went there, he met the parents of the Defendants and explained himself to him. It is either they will follow him or come the following day. While he was there 2md defendant came in with motor cycle. When he was trying to explain to him based on what the DPO told him to come and do, 2nd Defendant told him leave the place. When he notice the 2nd Defendant’s mood he tactically withdrew from that place. He went back to the office and explained to the DPO. It was not up to 30 minutes PW1 came with his mother Helen PW2 to the Police Station with blood rushing from her head. The PW1 told him that immediately he left, the defendants attacked his mother PW2. 2nd Defendant used iron rod to hit his mother on the head. The victim was rushed to the hospital. He visited the scene at Umuezerugo Nnaarambia and recovered two iron pipes from the scene.
DEFENCE CASE
DW1-Ifeanyi Christian testified that PW1 – complainant is his uncle’s son. PW2 his uncle’s wife. 1st defendant is his elder brother. On 9-10-16 being Sunday, one boy Nnaemeka that his father rented a portion of land to, came with a car loaded with roofing wood to build his shop. After seeing him, he told him that he wants to go to Egberede Ngwuru Aboh Mbaise LGA to fix a key for someone. As he was there –Egbered Nguru- Nnameka called him on phone and told him that two boys- Onyinyechi and Odinaka Egwim came and were harassing him. He returned and Nnaemeka showed him where he was wounded with finger nails on his neck. When he went home his father who is partially blind told him that he heard noise but he did not see the people. It might be Odinakachi and Onyenyichi. So, he called his senior brother on phone who asked him whether the people were still around fighting the Nnaemeka, and he said no. His brother told him to wait that he is coming. He went back to the place he was fixing key. He was there Nnaemeka called him again on phone and told him that they came back again to pull down his shade. They fought him second time and, in the process, his senior brother 1st Defendant came in. When he -DW1 -came back, he saw crowd. Then he went there and saw PW1, Scholar Egwim, Chinenye Egwim. As he was trying to come down from the machine, he was carrying a jerrycan of fuel which he used in the Plant he used in fixing keys. As he was trying to get down from machine, PW1 came with stick from nowhere to come and hit him. As PW1 wanted to hit him, he raised the jerrycan up with carton of old key that he removed from the house, he hit the jerry can and the fuel splashed on both of them. He went and threw away the jerry can. The mother of PW1 was coming out from her house and shouting whether her son PW1 want to kill someone. The PW1 also rushed and wanted to hit him with the stick and he dogged and so the stick hit the mother of the PW1 and she fell down and got up by herself. PW1 threw the stick away and carried her mother away. Two days after a Police man came by name Paul and serve him with invitation letter that they want to see him at the Ahiazu Police Station him and 1st Defendant. They went to Ahiazu Police Station and were detained and granted bail. He told DPO that this started since 2014 when he started building house this place in dispute now. He showed the DPO the picture of his house on the land which the PW1 and his brother pulled down. He told the DPO that he did not take them to the Police and did not take them to court. The DPO sent Paul to go and verify which he did and confirmed the truthfulness. The PW1 came with his brother Odinakachi Egwim. DPO now addressed both of them and encouraged them to settle since they are brothers. The PW1 refused and said he does not want peace unless he –DW1- agrees that he was the one who hit his mother with stick. He also stated that he went with Paul the IPO to the hospital and saw the PW2. Against the advice of the DPO, the PW1 insisted the matter was transferred to Area Command. From there they were charged to Magistrate Court. He was cross examined
In the course of trial the following were tendered as Exhibits:
- The statements of the PW1 made at Ahiazu Mbaise Station on 9-10-18 and at Area Command on 25-10-16 are admitted in evidence and marked Exhibits A and A1
- The statement of the PW2 dated 14-10-2016 and 26-10-16 are admitted in evidence and marked exhibits B & C
- Statement of the PW3 dated 9-10-16 is admitted and marked as exhibit ‘D”
- The statement of PW4 dated 18-10-2016 is admitted and marked exhibit E.
- The medical report is admitted and marked Exhibit F
- Police Investigation Report dated 26-10-16 is admitted and marked Exhibit G
- The statement of the Accused person- Emeka Ufomba is admitted and marked Exhibit H
- The 2nd Accused person statement dated 25-10-16 is admitted and marked J.
- The wheel barrow hand the metal rod and the rod are admitted and marked Exhibits K1 & 2
- Sky blue shirt is admitted and marked Exhibit L
- Transfer of case file is marked Exhibit M
- The Report Police Investigation reported by PW7 is admitted and marked Exhibit N
At the close of evidence, the counsel filed and exchanged written address. I have considered the address and issues raised by the counsel.
RESOLUTION OF MATTER:
Having considered deeply the evidence of the parties and the address of counsel in this matter, it is my view that the issue that calls for determination is whether the prosecution has proved the charges against the Defendants:
The law under which the Defendants were charged provided as follows:
“332. Any person who, with intent to maim, disfigure or disable, any person or to do some grievous harm to any person, or to resist or prevent the lawful arrest or detention of any person-
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(1) Unlawfully wounds or does any grievous harm to any person by any means whatever;
(7) unlawfully casts or throws any such fluid or substance at or upon any person, or otherwise applies any such fluid or substance to the person of any person;
is guilty of a felony, and is liable to imprisonment for life.
On the elements of the charge under which the defendants were charged, it is stated in MR. EMMANUEL NWOYE v. THE STATE (2018) LPELR-46067(CA) thus:
“The appellant was charged under Section 288 (a) and (g) of the Criminal Code Law of Anambra State Cap 36, Volume 2 Laws of Anambra State, 1991 which reads:
- Any person who, with intent to maim, disfigure or disable any person, or to do some grievous harm to any person, or to resist or prevent the lawful arrest or detention of any person—–
unlawfully wounds or cause grievous harm to any person by any means whatever; or
(g) unlawfully casts or throws any such fluid or substance at or upon any person, or otherwise applies any such fluid or substance to the person or any person; is guilty of a felony, and is liable to imprisonment for life.
From the clear wordings of the law under which the appellant was charged where a person is charged with an offence of causing grievous harm to any person by casting or throwing some fluid or substance at the person, the onus is on the prosecution to prove the following elements of the offence:
- That the accused person intentionally cast or threw some fluid or substance at the victim.
- That the accused person cast or threw the fluid or substance at or upon the victim with intent to maim, disfigure or disable the victim or cause him grievous harm.
- That the fluid or substance cast or thrown at the victim maimed or disfigured or caused him grievous harm.
This section 332 makes intention a specific element of the offence. Hence the element of intention needs to be established. The prosecution must prove that the defendant actually had a subjective intent to achieve the described result. Intention is a purpose or design to bring about the particular result, and that is what the prosecution must prove.
Where the legislature makes an offence dependent on proof of intention, the court must have proof of facts sufficient to justify it in coming to the conclusion that the intention existed. The courts have stated in various cases who intent can be proved. In UWADIALE AREBAMEN v. THE STATE (1972) LPELR-542(SC) it is stated:
“Intent is of course difficult to prove affirmatively without a confession from the accused and can frequently only be determined by looking at all the surrounding circumstances and deciding therefrom whether the natural inference is that such must have been the intention. A material factor must be the action or conduct of the accused himself and here in this case two matters arose.” Per IAN LEWIS ,JSC (Pp. 14-15, paras. F-A)
It could be proved by his declaration as to his intent. In AMEH RICHARD v. THE STATE (2013) LPELR-22137(CA) it was stated:
“Intent is a state of mind in which a person seeks to accomplish a given result through a course of action. It is therefore a mental attitude which can seldom be proved by direct evidence, but must ordinarily be proved by circumstances from which it may be inferred. A state of mind existing at the time a person commits an offence may be shown by act, circumstances and inferences deducible there-from. See: THE STATE v. EVANS, 219, KANSAS REPORTS 515 at 548; PACIFIC REPORTER, 2nd SERIES, 772 at 777; STATE v. GANTT 26 N.C. APP. 554 at 217.” Per PAUL ADAMU GALINJE, JCA (Pp. 23-24, paras. F-A)
Also, in MUFUTAU BAKARE v. THE STATE (1987) LPELR-714(SC) SEGUN AKINLOLU v. THE STATE (2015) LPELR-25986(SC)
In ascertaining whether intent has been proved the court considers the circumstances under which the alleged harm occurred. In the persuasive case of Zulu v State (78 of 2008) (78 of 2008) [2008] MWHC 220 (21 August 2008) the court considered the circumstance under which the hot water was poured. The court stated:
It seems to me that for an offence charged under section 235(g) of the Penal Code the mental element is the intent to maim, disfigure, disable or to do grievous harm to any person. In the case at hand, it is admitted that the appellant did cast boiling water on the person of the victim. In dealing with the issue whether the appellant had the requisite mens rea the lower court made some observations. The lower court considered the evidence of the appellant that she cast the hot water in self-defence and rejected that piece of evidence. The lower court also noted that the appellant had earlier told the police that she poured the hot water on the victim accidentally but that she offered no first aid. Again, the evidence of the prosecution was that it was largely the back part of the victim that the hot water landed and burnt. As the lower court observed the hot water must have been cast at the time the child victim was going away from the house of the appellant and this raises serious doubt that the appellant was re-acting to any grave danger directed at her. The second ground of appeal makes reference to the appellant having been battered with glass bottles but there is no evidence to suggest that this indeed happened. The lower court rejected the defense evidence that the children, 10 of them, were at the appellant’s house fighting with her. There is uncontroverted evidence of PW1 and PW2 that while they were at the appellant’s house waiting for their father, the appellant walked in and out of the house, changing clothes in the process. That behavior is inconsistent with that of a person responding to the type of provocation that the appellant would want this court to believe was present. The first ground of appeal has not been made out
See THE STATE v. OJO JEGEDE & ORS (2020) LPELR-51020(CA)
Before I proceed, I wish to state that a defendant does not need the approval or permission of a police officer or the prosecution to call witness(s). The defendants in this case tried to show that they were not allowed to call witness. If is possible at the police station that a defendant is allowed to bring his witness(s) for interview, it is not possible to deprive a defendant the liberty to call any he wishes in the course of trial in the court. The defendants at the trial are at liberty to call whosoever the wish to call in their defence. This is neither the function of the Police or the Prosecution. In EMMANUEL OKPULOR v. THE STATE (1990) LPELR-2523(SC) it is stated:
It appears to me that the duty of the prosecution to call witnesses in order to discharge the onus of proof incumbent on them in a criminal charge cannot extend to their calling a witness known only to an accused person who fails to supply all the necessary particulars to enable them know the witness whereabouts. Indeed, their duty is limited to calling enough witnesses to prove their case, not to call those witnesses who should testify for the defence. Underscoring this point in the case of Inusa Saidu v. The State (1982) 4 S.C.41, at pp.68-69 this court per Obaseki, J.S.C., stated: “This Court has repeatedly stated of recent that although the burden on the prosecution is to prove his case against the accused beyond any reasonable doubt, the prosecution has a discretion to call only those witnesses required to unfold its case. The law does not impose on the prosecution the duty or function of both the prosecution and defence. See Effiong Udofia v. The State (1981) 11-12 S.C.49 at 63, Okonofua v. The State (1981) 6-7 S.C.1 at 18 Samuel Adaje v. The State (1979) 6-9 S.C.18 at 28, Seneviratne v. The King (1936) 3 All E.R.36 at 48 P.C., Reg. v. Nigent (1977) 1 W.L.R.789.
In EMMANUEL OCHIBA V. THE STATE (2011) LPELR-8245(SC) it is stated:
“It does not lie in the mouth of the defence to urge the prosecution to call a particular witness – as there is nothing stopping the accused himself from calling such witness when defence opens.
The defendants have nobody to blame for failure to call any witness to defence but themselves. see EJIOFOR V. THE STATE (2000) 6 NSCOR (PART 1) 209 at 237
Now, do the circumstances and the sequence of events that culminated in this charge show that the Defendants intended to cause grievous harm on the complainants PW1 and PW2.
It is obvious that the root cause of this matter is land dispute between the complainant and the Defendants. That this is undeniably the fact is confirmed by the witnesses.
In the Pw1 statement of 9-10-2016 stated:
It was about 10am of 9-10-2016 being Sunday I saw Ifeanyi Egwim, Emeka Egwim and Mgeodichinma Egwim F and Peace Egwim F all of them were inside my late father’s portion of land situate along Nnarambia and Eke Ngwuru Road clearing the farm to build shade. I asked them why are they encroaching in the land at this point Ifeanyi Egwim and Emeka chase me with machete I ran to the police station and reported.
In his statement of the 25-10-2021 he added:
It was on Sunday 09/10/2016 at 10.am hours, I was just passing by and saw Ifeanyi Egwim M , my cousin and 5 other persons on a family land, which is in dispute and the case is pending in the court of law. As I approached Ifeanyi, trying to know why he is still cultivating on the land, he gave deaf ears and pushed me away from the land, with abusive words he was throwing at me.
In his oral evidence he said:
On 9-10-16 I was going to the church when I saw 1st Accused and 2nd Accused with Mgbeodichimma and Chimuanya all the sons of my uncle, Mr. Ufomba Egwim. They were inside my father’s land, clearing the grass and putting a structure there, a shade. I stopped there and asked them what they were doing there. The 1st & 2nd Accused persons chased me out of the place with a machete. I ran to the Police station Ahiazu to report the matter
under the cross examination of the PW1 thus:
Q: How are you related to the Accused persons?
A: They are my uncle’s sons
Q: The land in question has been a subject of litigation since 1986
A: I do not know about that
Q: The case was won by the Accused persons
A: I do not know about that
Q: It is because you do not know that you are the aggressor in the matter
A: I am not the aggressor
Q: I put it to you that you want that land at all cost
A: I am only fighting for my father’s right
The PW1 vacillated between been chased away with machete and being pushed away with abusive words. He also vacillated between knowing that the matter is pending in court and not knowing about the matter pending in court.
The PW2 in her evidence in chief stated:
I saw when the Accused persons and PW1 were talking in my husband’s farm land. He was asking them what they were doing in his father’s farm land and they pursued him with matchet
And under cross examination
Q: The cause of this matter is piece of land.
A: Yes
Q: Dispute relating to this parcel of land has gone to Aboh Mbaise High court before
A: It is not true
Q: The Judgment delivered at Aboh Mbaise case is in favour of the father of the Accused persons
A: There was nothing like that. It is not true.
Q: The quarrel over the piece of land has been on for a while
A: Yes.
Q: As a result, the two sides of the families are not in good terms
A: That is true
Q: As a matter of fact, the matter is before the Customary Court at the instance of your son
A: He went to Customary Court so that the Accused persons will not kill me or him.
Q: What happened that day was general fight between you, your son and the Accused persons in the course of which you sustained injury.
A: There was no fight. I did not say anything. If my son wanted to fight them, he would not have gone to call Police
Q: You are bitter because the Accused persons allegedly fought your son on the land.
A: I am not bitter. They are holding my land and still fighting me.
The PW6
Q: You discovered in your investigation that the whole thing emanated from ownership of land
A: Yes
Q: You discovered that there is a pending suit in respect of the land
A: Yes
Q: You equally told that the father of the Accused person won the matter over the land at Aboh Mbaise High Court
A: Yes
The evidence before this court shows clearly that the land is in dispute between the patties- the Defendants on one side and the PW1 and PW2 on the other side. In his statement to the police the PW3 on the 9-10-2016 confirmed there was a land dispute.
On the count under section 332(g) alleging that fuel was poured the PW1 in a bid to set him ablaze. In his statement of 9-10-2016 PW1 stated:
Then a police man from Ahiazu Mbaise came and serve them Police Invitaion to report on 10-10-2016for DPO’s interview. After serving them the invitation he left and as I was about going to my shade at Eke Ahaira Junction Ifeanyi Egiwm and Emeka Egwim stopped me on my way and started beating me with iron as they were beating me, Emeka sent his son who I don’t know his name to bring fuel and Ifeanyi collected the gallon of fuel from him and pure it on my body ready to set fire on me as I was shouting my mother came to rescue me from them, as Ifeanyi saw her he rushed her and used the iron and hit her on her fore head and on her hand which cause her injuries, she felled down Peace Egwim F and Mggeodichi Egwuim F started beating her while on the ground. During the incident one Felix Oledinma M of Umuofor Nnarambia came and rescued me and my mother from them. This is all that happened”
Also in the statement of 25/10/2016 he stated:
Thus, the same Sunday as I was going to church Ifeanyi and his younger brother, name unknown by me, stopped me, pushed me down from my motorcycle, Ifeanyi gave his brother some amount of money to go and buy fuel and matches for him to use it and burn me ablaze, but neigbours came to my rescue and my mother who was resting inside heard my voice and dashed outside, as Ifeanyi saw my mum, he picked up an iron beside a tree and hit on my mother’s head. That got my mother seriously (got my mother) injured and he also hit her again with the iron but she dogged it and had a cut on her hand but she was left in a pool of blood from her head.
In his oral evidence the PW1 said:
On my way going to my shop in front of my house the Accused person blocked me, they were using iron to stop me. And they asked me if I have finished with the Police, or I think it is a police matter. They were hitting me with the iron while I was on top of my machine then I fell down. The son of the 1st Accused person, Ifeanyi ran to bring that fuel. Ifeanyi collected the fuel from him and poured it on me while I was on the ground. I was shouting. Fuel entered my eyes; my mother heard my voice and came out of the house to know what was happening. A lot of people were there then, they were holding them not to hit me. Ifeanyi put his hand inside his pocket and brought out matches to put light on me. The people then now rushed and gripped him and collected the matches from him. Then, Ifeanyi looked on and saw my mother coming then he used the hefty iron in his hand and hit my mother on her forehead and he hit her for the 2nd time on her hand, then my mother fell down and blood covered her and they dropped the iron and ran away.
He was cross examined and he volunteered as follows:
In both statements I mentioned that the 2nd Accused put his hands in the pocket and brought out matches to set me ablaze. I was never admitted in any hospital. The police never issued me with any medical proformer. The Accused persons hit me with iron rod. It was Ifeanyi that sent Chimuanya to buy fuel to set me ablaze. Chimuanya is Emeka’son. 2nd Accused sent Chimuanya to buy fuel. They poured fuel on me and were ready to set me on fire.
It is obvious that the PW1 did not in the 1st statement state that the 2nd Defendant put his hands in the pocket and brought out matches to set him ablaze. It was only stated in the later statement of 25-10-2016.
As regarding this pouring of fuel, I will also look at the two statements ascribed to the PW2. One is dated 14-10-2016 and the other is on 26-10-16. On her statement of 14-10-2016 she stated:
Before then I saw the son to Emeka by name Chimuanya with a gallon of fuel which he gave to Ifeanyi and he pure it on the body of Onyinyechi and was about looking for matches to set fire on him. His father by name Ufomba was standing by telling his children to kill my son Onyinyechi. This all I know.
On her statement of 26-10-2016 she stated:
It was a fateful Sunday which I came back from mass (church) and I have nothing in mind that there was problem in the house. On my arrival I overheard somebody shouting ‘do you want to set him ablaze’. I came out and it happened that Ifeanyi Egwim, Emeka Egwim and their sister’s siblings were armed with sticks and iron.
Under cross examination of the PW2 the following transpired:
Q: Apart from your son and the Accused persons did you see any other person fighting?
A: I saw the son of the 1st Accused brought fuel and matches
Q: You were not there when the brought fuel and matches.
A: I was not there. But I saw fuel, the body of my son was full of fuel and I saw the matches
Q: You will agree with me that if fuel is poured on someone, the whole body will be smelling of fuel
A: Yes
Q: You saw the gallon with which the fuel was brought
A: It is bucket
Q: You did not tell the police that the fuel was brought with a bucket.
A: I said so
Q: You saw the matches with which they wanted to set your son ablaze
A: Yes
Q: You took the matches from the person holding the matches so that your son will not be set ablaze.
A: He left the matches when he used the rod to hit me.
Q: When the 2nd Accused person allegedly hit you with a rod and you fell down your son was still there
A: He was there
Q: He was there and he was not set ablaze.
A: The matches were removed from him.
Q: Who removed the matches from him?
A: Matches was removed from him. I can’t remember by whom.
Q: I put it to you that none of the Accused persons were with matches or procured fuel for the purpose of setting your son ablaze.
A: It is not true
In one breath it is that she saw and in another it is that she heard a shout.
The PW3 in his statement of 9-10-2016 stated:
“As I was pleading with some of their village people who gathered there, Ifeanyi just unexpectedly flash a keg of fuel on Onyinyechi and immediately brought out a park of matches to light on Onyinyechi but for the quickly intervention of everybody around who griped him only God knows what would have happened
The PW3 under cross examination volunteered this information:
Q: You said the 2nd Accused splashed a keg of fuel on the PW1
A: Yes
Q: What is the make of the keg?
A: I can’t say
Q: But you saw the keg
A: It is four-liter keg but I do not know the make
Q: Does it have a cover?
A: It was open when he spread it
Q: I put it to you that there was no incident of the 2nd Accused splashing fuel on the PW1
A: There was
Q: There was no incidence of the 2nd Accused holding any matches not to talk of trying to set the PW1 ablaze.
A: There was
Q: Do you know where the keg is
A: I do not know
Q: What about the matches was it removed from the 2nd Accuse to prevent him from setting the PW1 ablaze?
A: No.
Q: I put it to you that 2nd Accused did not hold any matches
A: He did
While the PW1 was observant to have seen the 2nd Defendant gave money to the son of the 1st defendant to buy the fuel and matches, the PW3 another eyes witness was not so observant. The splashing of fuel was unexpectedly. The PW1 gave an impression that he watched arrangement being made to go and buy fuel and matches to set him ablaze and he kept calm and raised no alarm.
Still on this alleged attack on the PW1. The PW1 in his evidence said he was chased away by the Defendant and he went to lay complaint with the Police. And then on his way back he was attacked by the defendants. The evidence of the PW3 supplied details that the PW1 probably did not want to make public. He was not just attacked. He stoked the fight. There was a squabble inside the land in dispute. The PW1 was actually inside the land i.e., on the land, trying to prevent the carpenter from working on the hut being erected by the Defendants according to PW3. The PW3 in his statement said on the above mentioned date I was driving along Eke AHIRA – Eke Nguru Road when I saw people fighting at Umuezeurugwu I and to park on approaching to the close, I saw one Onyinye and Ifeanyi with his brother and another person whom I do not know who I later confirmed to be from Nguru.
The particulars of the offence is that EMEKA EMMANUEL UFOMBA, IFEANYI CHRISTIAN and others now at large on or about the 9th day of October, 2016 at Umuezereugwe, Nnarambia Ahiazu Mbaise in the Ahiazu Mbaise Judicial Division did with intent to disfigure unlawfully cast or poured fuel substance all over the body of one Onyinyechi Egwim with the intention to set him ablaze.
To maim means to deprive a person of the use of a limb or part of the body, to mutilate or cripple the person. To disfigure is to do some external injury which detracts from another’s personal appearance. To disable is to do something which creates a disability, whether temporary or permanent. See section 1(1) of the Criminal Code Cap 42
What was purportedly poured on the PW1 was fuel. Fuel is defined as a substance that provides energy when its makeup is chemically or physically altered. See https://thelawdictionary.org. The nature of this fuel was not supplied by the prosecution. However, the defence did. The 2nd Defendant in his statement stated:
“I was at home when my brother Chukwuemeka arrived, then I now went out with my sister’s motorcycle and I sent my senior brother’s son Chimunya to go and buy fuel for me. Then when I came back, I saw crowd in our compound and Onyinyechi Egiwm was holding the boy our father rented the land to in the cloth and my senior brother was separating them. Already I have received the fuel from my brother’s son and I was holding it when Onyeinyechi rushed me with a stick. His attempt to use it on me and I used the gallon of fuel to block him thereby the fuel now poured on the crowed who witness the incident.
In his oral evidence he stated:
“When I came back, I saw crowd. Then I went there and saw PW1, Scholar Egwim, Chinenye Egwim. As I was trying to come down from the machine, I was carrying a jerrycan of fuel which I used in the Plant I used in fixing keys. As I was trying to get down from machine, PW1 came with stick from nowhere to come and hit me. So, I used the jerry can as he wanted to hit me, raised it up with carton of old key that I removed from the house and when he wanted to hit me, he hit the jerry can and the fuel splashed on both of us. I went and threw away the jerry can.
The 1st Defendant also made a statement. He stated:
“Meanwhile my younger brother Ifeanyi was coming back from filing station where he went and bought fuel which he will use on his motorcycle. So at this point, Onyinyechi Egwim collected a stick and wanted to use it on my brother Ifeanyi who now used the gallon of fuel to block the stick hence the fuel now spread on everybody who was around the incident including me
From the purpose stated by the Defendants for which the fuel was to be used, it can be deducted that it was petrol. Petrol is the fuel used in many types of vehicles, including cars, motorcycles, motorboats, and airplanes. In the case of R v WBJ [2020] QCA 32 SUPREME COURT OF QUEENSLAND discussing an appeal on a similar charge as our section 332(g) stated:
It is within ordinary experience that petrol acts in a corrosive way upon human skin and, in particular, upon a person’s eyes. The pain and redness described by the complainant as the consequences of the appellant’s pouring petrol over her are the expected results when petrol is applied to human skin. It is a corrosive as well as a destructive fluid and no expert evidence was required to prove that fact.
But for it to be proved it must be shown that the pouring was intentional and that the substance indeed caused grievous harm. While the prosecution endeavours to show that the pouring of the fuel on the PW1 was an intentional and deliberate act, the Defendants are saying that it is an accident. They did not set out to splash the PW1 with fuel and to set him ablaze. It is noted that this aspect of the crime was not covered by the Police investigation report. The undated and unsigned Report from Ahiazu Division did not mention it. The Investigation Report from the Area commander, Owerri dated 26th October 2016, coincidentally the date the PW2 was discharged from the hospital according to Medical report exhibit F signed on 02-11-2016. It was the 26th October 2016 that they visited and found the PW2 on the sick bed, stated:
“The Problem emanated as a result of land dispute in which the parties had an open confrontation on the 9th October, 2016 thereby this resulted to fight and, on the process, the mother of the Petitioner one Mrs. Helen Onuabuchi Egwim was assaulted with an iron object by Ifeanyi Christian M, she hard a serious wound on her forehead and right-hand wrist and she has been on hospitalization at one Chinyere’s clinic & Maternity Ahiazu Mbaise LGA till date
There was no medical examination of the PW1. The PW7 testified that it was the PW1 that brought PW2 to the police station and referred to her only as the victim. It is also noted that no recovery was made in respect of this aspect of the crime. Neither the keg jerrycan of fuel, nor the matches was tendered in evidence. It is not shown that the fluid or substance cast or thrown at the PW1 maimed or disfigured or caused him grievous harm. In respect of counts 3 and 4, I will acquit and discharge the defendants. They are accordingly discharged and acquitted on counts 3 and 4.
In respect of count 1 and 2 on the alleged injury on the PW2, the PW1’s evidence is to the effect that when the fuel was poured on him he shouted and this attracted his mother who came. Immediately the 2nd Defendant sighted her he rushed her and hit her with the rod on the head and on second attempt of heating her she put her hand forward in defence and the 2nd defendant hit her on the wrist. The mother fainted and was carried to the hospital unconscious
According to the PW2, the alleged victim: immediately the 2nd Defendant sited her he used rod and hit her on the right hand. She fell down and he hit her on the head. She fell down and became unconscious. She did not even know when she was taken to the hospital
On his part, the PW3 evidence is summed up thus: the 2nd defendant ran home, came out with an iron rod pursued the PW1 who ran. So 2nd defendant went to where PW1’s mother was sitting and hit her with the iron. He now carried the PW2 in his vehicle, went to Ahiazu Police Station and from there to the hospital
According to the PW4: “Along the line Mama Helen was coming out from her house, the Accused left the scene and took a rod and hit the PW2 on the head. When he hit the woman, she fell down. And as I went to lift the woman- PW2 up, she couldn’t stand. I called Felix- PW3 who was there, he brought his motor with which the PW2 was taken to the Hospital
PW5 is a medical doctor he testified that the PW2 was brought to the hospital unconscious sometimes in 2016. She bleeding and deep cut at right wrist and forehead. She was resuscitated and treated for about two weeks. She was discharged on 26-10-16 and she was placed on monthly visit for three months
The evidence of the PW7 is: I went back to the office and started explaining to the DPO what I saw there. They refused to honour the invitation. It was not up to 30 minutes Onyinyechi Egwim came with his Mother Helen to the Police Station with blood rushing from her head. When I asked him what happened he told me that immediately I left, the 1st and 2nd Accused person attacked his mother. That Ifeanyi used iron rod to hit his mother on the head. The victim was rushed to the hospital.
The evidence of the 1st defendant is to the effect that it was the stick that the PW1 intended to hit him with that eventually landed on the PW2. If this explains the injury on the head it will not explain the injury on the wrist.
Under the count the particulars are: EMEKA EMMANUEL UFOMBA, IFEANYI CHRISTIAN and others now at large on or about the 9th day of October, 2016 at Umuezereugwe, Nnarambia Ahiazu Mbaise in the Ahiazu Mbaise Judicial Division did with intent to maim, disfigure or disable one Helen Onuabuchi Egwim hit her with an iron rod on her fore-head and right wrist hand causing her grievous harm.
The parties: the prosecution and the defence are ad idem that the PW2 was hurt. From the totality of the evidence it is clear that the PW2 did not engage in the fight. This is unlike the PW1 who was engaged with the Defendants. I am convinced that the PW2 was hurt in the process. The evidence of the PW7 is: It was not up to 30 minutes Onyinyechi Egwim came with his Mother Helen to the Police Station with blood rushing from her head. When I asked him what happened he told me that immediately I left, the 1st and 2nd Accused person attacked his mother. That Ifeanyi used iron rod to hit his mother on the head. The victim was rushed to the hospital.
The doctor –PW5 said the PW2 was unconscious when she was brought to the hospital. The PW1 said he carried the PW2 who was unconscious to the Police Station first and from the police station he took her to the hospital. Now PW7 is saying that the PW1 came with the PW2 to the police station and blood was rushing from the PW2’s face. He made no mention of the PW2 being unconscious. It is not proved that the harm was intentional and with such intent to maim, disfigure or disable the victim or cause him grievous harm.
As I said from the evidence of the Doctor harm was done to the PW2. This harm I believe was in the course of squabble between two families of the same blood lineage over a land. It is noted that the PW 2 made a statement on the 14-10-2016. That means she was strong enough to make statement in 3 days time. It is also noted the DW1 testified that he visited the PW2 in the hospital. He also testified efforts made towards reconciliation. In totality the intention required to prove this count is not there. That notwithstanding, if it cannot be proved that a defendant intentionally caused a grievous harm under section 332 of the Criminal Code, he may still be guilty of the crime of wounding. See Maja v. The State (1980) 1 N.C.R. 212. Appellant who was charged with the offence of murder contrary to S. 319(1) of the Criminal Code, attempt to murder, contrary to S. 320(1) of the Criminal Code, and wounding with intent contrary to Section 332(1) of the Code? At the trial, the prosecution withdrew the charge of murder and pursued the two remaining charges. At the end of the trial appellant was acquitted on all the charges but the Court invoking Section 179 of the Criminal Procedure Law substituted a conviction for unlawfully doing grievous harm contrary to Section 335 of the Criminal Code. Appellant appealed to the Court of Appeal. It was contended on appeal that (1) the substitution of conviction under S. 335 was contrary to S. 22(5) of the Constitution 1963 (now S. 33(6)(a), Constitution 1979) in that appellant was convicted of an offence of which he had no notice (2) the conviction was contrary to S. 22(8) of the Constitution 1963 (now S. 33(9)) since appellant had been convicted of the offence for which he was charged, the proceedings were concluded, and a conviction on the facts for another offence was improper. (3) the conviction was contrary to S. 22(1) of the Constitution 1963 (now S. 33(1)) in that the Court did not call on the appellant to show cause why he should not be convicted on the substituted charge, nor even to address the Court on that charge, and in effect the Court recorded a conviction without the appellants’ having had a proper hearing on the charge. This last-mentioned ground is the principal complaint of appellant before us. The Court of Appeal held that Section 22(1) of the Constitution 1963 was not violated merely because appellant was not asked to show cause why he should not be convicted of an offence included in that charge, or giving him opportunity to address the Court on the issue.
There is need to encourage people not to engage in a fight in respect of land dispute but to always seek redress civilly. Violence can only always breed violence and it does no one no good.
In the circumstances therefore the 1st and 2nd Defendants are each convicted under section 338(1) for unlawfully wounding one Helen Onuabuchi Egwim
They are each sentenced to 2 years imprisonment
I so hold.
I.M.Njaka
Judge
29-3-2021