Daniel Ibanga V. The State (1983)

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OBASEKI, J.S.C.

This is a murder appeal. The only ground argued by counsel was substituted ground, which reads:

“that the Federal Court of Appeal erred in law in convicting the accused of (in confirming the conviction of the accused of) murder when on the (circumstances of the case) the evidence led, he ought to have been convicted of manslaughter”.

In his submission, Shola Rhodes counsel for the appellant said that the adulterous association of the deceased with his (accused’s) former wife was a continuing provocation which led to the appellant’s attack on the deceased. He urged the court to consider the extremely volatile temper of the Abak people and hold that the association of the deceased and the former wife of the accused was sufficient provocation to reduce the offence of murder to manslaughter.

Quite properly, Miss Udom, the learned senior State Counsel, replied that the courts have never conceded to the Abak people the right to fly into a rage that drives to take life with ease and that the courts have always judged them with the same standard laid down for determining the issue of provocation in murder cases.

The facts of this case cannot, in my view, sustain the defence of provocation. In fact the appellant never in court made the issue of the former adulterous association of the deceased with his former wife the motivation of his attack on the deceased. It was the flower he planted by the side of the palm tree the deceased sold to his wife, which the deceased transferred to his house. Further, he never directly asserted that he used his matchet on the deceased. The contrary was the allegation, i.e. that the deceased stabbed him on the back of his neck and he ran to get his matchet from his son. The allegation was that the deceased stabbed him on the head a second time before he passed to his house. It was when he went to report to the police that he was informed that his matchet wounded the deceased. The matchet cuts were very severe. The head and left hand of the deceased were virtually destroyed. The matchet wound on the head fractured the skull and damaged the brain matter.

The defence of the appellant was however rejected by the learned trial judge.

The evidence of the eyewitnesses left with the trial judge was that of the children of the deceased, i.e. 2nd p.w. and 3rd p.w. who testified that the appellant attacked the deceased broke his pot and reported to them that he stabbed the deceased. It was a bloody attack as 2nd and 3rd p.w. testified that when the appellant met them the whole body was full of blood. The injury inflicted by appellant proved to be fatal.

The issue that both the deceased and the appellant used matchet freely does not arise. It appears that the appellant having made up his mind to kill the deceased sprung the attack on him and mortally wounded him. Having started the attack, the injuries he received (which were not found to have been inflicted by the deceased), even if the deceased had inflicted them, could only have been in self defence.

I cannot find any of the elements required by law to reduce murder to manslaughter in the facts proved in this case. See Obaji v. The State (1965) NMLR 417.

The appeal to the Federal Court of Appeal was properly in my view dismissed.

There is therefore no merit in this appeal and I hereby dismiss it.

The conviction together with the sentence passed by the High Court and affirmed by the Federal Court of Appeal is hereby affirmed.

IRIKEFE, J.S.C.: The deceased on the evidence has been paid to supply palm-wine to the former wife of the appellant. It was while the deceased was carrying the keg of palm-wine to the woman’s house that the appellant accosted him, forcibly removed the keg of palm-wine from him, set upon him with his matchet and inflicted several deadly blows, from which the deceased died shortly thereafter. There was evidence that the deceased had been having sexual relations with the appellant’s wife and the divorce proceedings subsequently instituted against the appellant by his wife, might have been traceable to the adulterous relationship.