Ikpo Kabaka & Anor V. The State (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AMIRU SANUSI, J.C.A. (Delivering the Leading Judgment)

This appeal emanates from the judgment of Edo State High Court (“the lower court for short,”) delivered on 29th of August, 2007 by C. O. Idahosa J. now Chief Judge of the State. The three appellants herein along with three others were arraigned before the lower court on a two count charge of conspiracy to commit murder and murder, contrary to sections 324 and 319(1) of the Criminal Code, Cap 48, Vol, II, Laws of Bendel state applicable in Edo State.

The facts of the case are briefly as follows. On the night of 9th May, 2006, the 4th accused (who was later acquitted by the lower court during the trial), the deceased and p.W’s 1, 3, 4, 5 and other were in prest Motel along Airport Road, Benin City to enjoy themselves. At about midnight, the 4th accused came out of the Motel to enjoy fresh air outside. The first fourth prosecution witnesses, the deceased and some others also came out to join him (4th accused) outside. As they were standing outside the Motel a girl came and greeted the 4th accused. While she was passing bye, she hit the bottle of Star beer being held by the deceased and the bottle fell down and got broken. The 4th accused was attracted by the noise of broken bottle and he became furious believing that it was the deceased who broke the bottle and he felt that it was a slight on his face for the deceased to break the bottle in his place. On seeing that, the PW1, the deceased and others around knelt down and begged the 4th accused but despite that, the 4th accused threatened to deal seriously with the deceased by using his boys who were members of Special Anti-Robbery Squad Wing of the Nigeria Police Force Headquarters in Benin City.

The next day i.e. 10th May, 2006, the deceased was abducted by the 1st, 2nd and 3rd accused persons (now appellants) and other persons now at large and was severely beaten up with planks 70 times and the deceased died few hours later in the hospital on that same day. Sequel to that the 1st, 2nd and 3rd accused persons now appellants and the 4s accused were arrested along with three others and charged to court on two count charge of conspiracy to murder and murder of the deceased punishable under Sections 324 and 319(1) of the Criminal Code, Cap 48, Vol. II of Laws of Bendel State of Nigeria, 1976 now applicable in Edo State. During their trial, the prosecution called eight witnesses to prove the charges against the 1st, 2nd, 3rd and 4th accused person. Each of the four accused persons after the close of the prosecution’s case, gave evidence on their own defence and jointly called three witnesses to testify on their behalf and closed their case. In the end, the 1st, 2nd and 3rd accused person (now appellants) were found guilty of manslaughter, convicted and each sentenced to ten years imprisonment with hard labour, The 5th and 6th accused persons were discharge following submission of NO case to answer while the 4th accused person later was discharged and acquitted of the two offences.

The three convicts now appellants, became dissatisfied with their conviction and sentence hence they jointly appealed to this court. Each of the three convicts filed separate notices of appeal with three identical grounds of appeal. In keeping with the provisions of the rules of this court which is

equally the practice in this penultimate court, parties filed and exchanged their respective briefs of arguments wherein both the appellants and the respondent herein proposed sole issue for the determination of this appeal which though very much similar but differently couched. In view of their similarity only the issue for determination raised in the appellants, joint brief will be set out below and the appear will be treated on it alone. The issue for determination proposed in the appellants’ brief of argument read thus:

“Whether or not there was sufficient evidence of manslaushter before the learned trial Judge which warranted a conviction for manslaughter instead of an outright acquittal and discharge of the appellant (sic).”

It was submitted on behalf of the three appellants that the offence of manslaughter was not proved beyond reasonable doubt by the prosecution for the lower court to found them guilty and convict them as it did. The learned appellants’ counsel submitted that before the court could convict them of manslaughter, there must be proof beyond reasonable doubt by the prosecution that it was the act of the accused/appellants that caused the death of the deceased. He remarked that where it is alleged that death has resulted from the act of a person a casual link between the death and the act must be established and proved beyond reasonable doubt. Reliance was placed on the case of Oforlete vs. The State (2003) FWLR (Pt.12) 208 at 269, E to F.

It was further submitted on behalf of the appellants that although they in their respective testimonies admitted beating the deceased with planks on his waist, lower limbs and his back, and that as member of their cult,the deceased had received worst beatings previously, hence they were not responsible for his death by the beating and that they never intended to kill the deceased. See Amayo vs. State (2002) FWLR (Pt.91) 1571.

In another submission, the learned appellants’ counsel argued that to prove an offence of manslaughter, it must be established not only that the acts of the accused could have caused the death of the deceased but also that it had really caused his death, adding that from the evidence adduced by the prosecution in the instant case, it has not been shown that the deceased person’s death was caused by the act of the appellants’ See Onyenankeya vs. The State (1964) All NLR 145.

On the medical report on what caused the death of the deceased, it was argued by the appellants’ counsel that the medical officer opined that the wounds inflicted on the deceased were caused by use of pointed object such as nails, while the accused persons in their testimonies, stated that the planks they used in beating the ceased had no any nail or pointed object on them and there was no evidence adduced by the prosecution to show the size or nature of the Planks.

It was also the contention of the appellants counsel that the trial court was wrong in its finding that the testimony of PW6 (Doctor) showed that the beating of the deceased resulted in external and internal injuries to the – deceased as such finding was not based on any evidence presented before it adding that such finding is perverse. He also argued that the medical evidence given by Pw6 did nor show clearly that the act of the appellants caused the deceased’s death.

In further contention, the appellants argued that PW6 testified that the cause of the death of the deceased was due to “multiple lower limbs injuries in a young adult with a valvular heart disease” but under cross examination the PW6 stated that the deceased died from injuries received and the heart problem. This according to them goes on to show that there was no certainty on what had actually caused the death of the deceased adding that the evidence adduced suggested that there had been intervening factors especially in view of the movements of the deceased from one hospital to another. The learned counsel for appellant concluded his argument by submitting that where there is possibility of intervening factors which could have caused the death of the deceased as in this case, such could be enough to create some doubts on the actual cause of the death of the deceased and such doubts created must be resolved in favour of the accused. See also Oferettee vs. The State (supra). On this note, he urged me to resolve the sole issue in favour of the appellants and allow the appeal.

In reply to the above submissions by the appellants, counsel, the respondent’s counsel submitted that in view of the unambiguous evidence adduced by the prosecution, the trial court was correct in convicting the appellants of the offence of manslaughter. He said although there was no eye witness called by the prosecution to testify in the case, evidence however’ abound from the confessional statements of the accused/appellants as well as their testimonies in court while giving evidence on their own behalf Similarly, the evidence of the medical doctor also corroborates their testimonies in court. He said that the lower court painstakingly reviewed the entire evidence adduced before it. The case before it concluded the learned appellants’ counsel, is one that the appellants could not be convicted of murder but rather on manslaughter under Section 317 of the Criminal Code. It was submitted further, that the court was correct in holding that the act of the appellants caused the death of the deceased. On the medical evidence, it was argued by the respondent’s counsel that although the deceased lived with heart problem, but the injuries he received as a result of the beatings by the appellants which occasioned him multiple lower limb injuries. He said there was evidence led by the prosecution showing that it was the act of the appellants that caused the death of the deceased. See Sowemimo vs. State (2004) LRCN 4141 @ 4157, para P-U. He said there was a casual link between the death of the deceased and the act of the appellants and which had been established beyond reasonable doubt. He placed reliance also on the case of D.P.P. vs. New Bury (1977) AC 500 or (1976) 2 All ER 365 @ 367.