Lawrence Asuquo Thomas V. The State (1994)

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BELGORE, J.S.C.

On 27th January, 1994 I dismissed this appeal and adjourned to today for giving fuller reasons for doing so. I now give my reasons.

On 13th March, 1985, Jimbo Mfioke Akpan (hereinafter referred to as the “deceased”) was in his car driving along Ekpo Abasi street Calabar. His wife Aggie, was sitting by his side. On getting to Maine Street the deceased was about to manoeuvre and turn there and in the process accidentally hit a motor-cycle ridden by Lawrence Asuquo Thomas the appellant. On the motor-cycle’s pinion sat appellant’s daughter who was being taken to school.

The appellant and his daughter, as a result of the impact fell down the daughter actually ending up in a gutter. The deceased expressed his regret for the minor accident but the appellant insisted he should come out of the car to see the extent of damage to his motorcycle. The deceased politely complied and on looking at the motorcycle undertook to get it repaired. The appellant certainly was very angry and aggressive.

As the deceased made his promise to repair the motor-cycle the appellant, despite entreaties by the deceased, hit the deceased with such a force that the deceased fell down and thereby hit his head on the hard tarred road. A Naval Officer who arrived at the scene arrested the appellant. In the meantime the deceased had head injuries and had to be rushed to the hospital where he died later in the day. The motor-cycle was later found to have no dent or damage as a result of the minor accident. The deceased, on hitting his head on the road became unconscious and never recovered consciousness up to when he died the same day. The cause of the death, according to medical evidence of P.W.5, was fracture of the skull with cerebral haemorrhage.

The appellant denied ever hitting the deceased and insisted the deceased fell down on his own. The trial court believed the prosecution’s case and disbelieved the story of the appellant. He was charged with murder but convicted of a lesser offence of manslaughter. Court of Appeal dismissed the appeal on conviction but reduced the trial court’s sentence of ten years to a fine of N1,000.00 or three years imprisonment in default. Thus the appeal to this court.

Trial court judgment contained the ample summary of what led to the death of the deceased. Court of Appeal has no cause to interfere with the conviction.

Whoever under no provocation takes into his hand the law and thereby physically attacks another obviously takes risk. The evidence overwhelmingly before the court is that the deceased was bullied by the appellant to come out of his car. On complying the appellant slapped him and thereby fell down and in the process hit his head on the hard tarred road. This led to his death. This has been a rash act on the part of the appellant. Slapping, to my mind, is not an accident and in this case was intentional. Certainly the appellant never intended to cause death or even gravely hurt the deceased, but by slapping him despite the entreaties of the deceased he acted rashly.

It is true that a person who merely slaps another does not intend to cause grievous harm; he did an unlawful thing by slapping the deceased but ordinarily that type of act was not remotely likely to endanger life. But certainly the appellant wanted the deceased to come out of his car so as to slap him. As a result of the slapping, the death of the deceased was occasioned. All these acts of the appellant fell short of murder but it was manslaughter. The death occurred the same day and the cause of death is directly linked with the fall after the appellant slapped the deceased. It is therefore not covered by S. 314 Criminal Code Law.

I therefore found no merit in the appeal which I dismissed on 27th January, 1994.

WALI, J.S.C.: The appellant was arraigned before Ita J. sitting in the High Court, Calabar, Cross River State, charged with the murder of Jimbo Mfioke Akpan, contrary to section 319(1) of the Criminal Code. He pleaded not guilty to the charge.

At the end of the trial, the appellant was found guilty of a lesser offence of manslaughter and “was accordingly convicted and sentenced to 10 years imprisonment.

Dissatisfied with the decision of the High Court, he appealed to the Court of Appeal Enugu Division, against both conviction and sentence. At the end of the hearing of the appeal, the Court of Appeal dismissed his appeal against conviction but substituted the ten years imprisonment term with a fine of N1,000.00 or 3 years imprisonment.

The appellant has now further appealed to this court against the substituted sentence.