IKPO KABAKA & ANOR V THE STATE

CORAM

PARTIES

1. IKPO KABAKA 2. LUCKY OGBEJOKO3. J.J. OJEME

THE STATE

AREA(S) OF LAW

SUMMARY OF FACTS

On the night of 9th May, 2006, the 4th accused (who was later acquitted by the lower court during the trial), the deceased and PW’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 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, 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 4th accused person were arrested along with three others and charged at Edo State High 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. 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.

HELD

Appeal Dismissed

ISSUES

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).

RATIONES DECIDENDI

MURDER- ELEMENTS THAT MUST BE PROVED TO SUCCEED IN A CASE OF MURDER

“The law is trite and well settled too, that in order to succeed in a case of murder, the prosecution is duty bound to prove the following elements beyond reasonable doubt. These elements are:-
(1) that the victim died;
(2) that the death of the deceased resulted from the act of the accused person or persons; and
(3) that the act of the accused was intended or with knowledge that death or grievous bodily harm was the probable consequence.
See Akinfe vs. State (1988) 3 NWLR (Pt. 85) 729; Oneh vs. State (1985) 3 NWLR (Pt. 12) 236; Oguonzee vs. State (1998) 5 NWLR (Pt. 557) 521; State vs. Maharaji (200) 2 CLRN 107; Ndukwe vs. State. It is stressed here that the above mentioned three elements must coexist and where one of them is missing or taunted with some doubt, than the charge is not proved. See Ochemnaye vs. State (2008) 36.”

OFFENCE OF MANSLAUGHTER- FACTS THAT MUST BE ESTABLISHED TO SUSTAIN A CONVICTION FOR THE OFFENCE OF MANSLAUGHTER

“It is trite and well settled law too, that in order to sustain conviction for the offence of manslaughter, it must be established beyond reasonable doubt that it was the act of the accused that caused the death of the deceased. See Idemudia vs. State (1999) 69 LRCN 1043 ratio 6 also reported in (1999) 7 NWLR (pt. 610) 202.
In fact, whenever it is alleged that death has resulted from the act of a person, a causal link between the death and the act must be established and proved beyond reasonable doubt that it was the act of the accused that caused the death of the victim. See Sowemimo vs. State (supra); Oforlete vs. State (supra) also reported in (2000) 12 NWLR (Pt. 68) 415.”

WEAPON – WHETHER FAILURE TO PRODUCE A WEAPON USED ON A DECEASED VICTIM AT THE TRIAL COURT IS FATAL

“With due deference to the learned appellants’ counsel, it is trite law that failure to produce or tender object or weapon used on a deceased victim at the trial court is inconsequential. It is always the gravity of the assault (say on vital part of the body) that could lead to conviction of murder or manslaughter. There can be no doubt, for instance, that if one delivers violent blow with stick or plank or stick or club on vulnerable part of the body such person could be deemed to have intended to cause such bodily injury as he knew death could result from his action. See Garba vs. The State (2000) 4 SCNJ 315.”

OFFENCE OF MANSLAUGHTER- WHEN IS AN OFFENCE OF MANSLAUGHTER ESTABLISHED?

“Again, in the English case of DPP vs. Newbury (1977) AC 500 or (1976) 2 All ER 365, Lord Salmon stated thus on pages 507 or 367 of the two reports respectively:-
“An accused is guilty of manslaughter if it is proved that he intentionally did an act which was unlawful and dangerous and that the act inadvertently caused death and it is unnecessary to prove that his act was unlawful and dangerous.”
I wish to further add that a court can find an accused person guilty of manslaughter where there is sufficient proof, as in this instant case, that the intentionally committed an act which was unlawful and dangerous and which inadvertently caused the death of his victim. I am in entire agreement with the learned trial Judge’s finding of the appellants’ guilty of manslaughter and not murder by virtue of the provisions of Section 179 of the Criminal Procedure Act, see R vs. Nameri 20 NLR 6; Queen vs Gabriel (1957) WRNLR 9; John vs. State (1966) All NLR 496; Idowu vs. State (2000) (supra).”

STANDARD OF PROOF IN CRIMINAL PROCEEDINGS – PRINCIPLE GUIDING THE STANDARD OF PROOF IN CRIMINAL PROCEEDINGS

“My noble Lords, please permit me to reflect or comment on the standard of proof of crime as provided in our Law of evidence. Now, basically before a court can pass a verdict of guilt in a criminal charge, such court must be satisfied beyond reasonable doubt. However, proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. Therefore if the evidence adduced before a trial court is strong against a man as to leave only remote possibility in his favour which can be dismissed with a simple sentence of course it is possible, but not in fact least probable”, then the case is proved beyond reasonable doubt. See R vs. Lawrence (1932) 11 NLR 6; Lori vs. State (1980) 8-11 SC 811; Onyeakwu vs. State (2000) 2 CLRN 185.”

COURT- PRIMARY FUNCTIONS OF A TRIAL COURT

“Now, I am mindful of the fact and it is in fact settled law that the trial court which alone had the unique privilege of seeing, watching and hearing the witnesses testify that has the primary function of appraising and ascribing probative value to the evidence presented by parties, put the said evidence on an imaginary scale of justice to determine the party in whose favour the balance tilts make necessary finding of facts, apply the relevant law to those facts and come to the logical conclusion.”

CASES CITED

Not Available

STATUTES REFERRED TO

Criminal Code, Cap 48, Vol. II of Laws of Bendel State of Nigeria, 1976 now applicable in Edo State|Criminal Procedure Act|

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