CITATION: (1983) ANLR (30)

AYO GABRIEL IRIKEFE                                            JUSTICE, SUPREME COURT
CHUKWUNWEIKE IDIGBES,                                   JUSTICE, SUPREME COURT
ANDREWS OTUTU OBASEKI,                                 JUSTICE, SUPREME COURT


DANIEL IBANGA                                                          APPELLANT


THE STATE                                                              RESPONDENT

OBASEKI, JSC. 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 eye witnesses 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 they had been inflicted by the deceased, 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, JSC. 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.

Mr. Rhodes for the appellant, therefore, submitted that the deceased having been responsible for the break-up of the appellant's home, it was only but natural that the appellant should see red whenever he saw the deceased. This may very well be so, but this was no reason why the appellant should himself provoke a fight with a lethal weapon with the deceased and inflict all the injuries he did on him, leaving him with little or no opportunity to put up but a feeble defence.

The court of trial found that the appellant was the aggressor, that he nursed malice against the deceased on account of the latter's sexual dealings with his former wife, and that the injuries which the appellant inflicted on the deceased were such that the deceased could not fight back effectively. Mr. Rhodes urged us to substitute a finding of manslaughter on the facts established at the court of trial. When it was pointed out to him that having regard to his ground of appeal, he had no option but to accept the facts as found by the court of trial, he later conceded that, on the said facts, the only verdict open to the court was one of murder. In regard to what transpired at the scene of the alleged fight, Mr. Rhodes also conceded that the deceased had been taken by surprise.

I am satisfied that the learned trial judge had carefully examined all legal defences available to the appellant and was right in holding that the appellant while smarting under a grievance against the deceased on account of the deceased's sexual dealings with his former wife, provoked him to a fight with a matchet and inflicted the injuries found, before the deceased could defend himself effectively. On this finding a verdict other than murder would be perverse.

I am satisfied that this appeal lacks merit and that the Court of Appeal was right in dismissing it. I also would dismiss it. Appeal dismissed and the conviction and sentence imposed by the trial court are hereby affirmed.

IDIGBE, JSC. I agree that this appeal should be dismissed. The appellant killed the deceased-on the evidence rightly, in my view, accepted by the learned trial judge-in cold blood. This was on the 18th day of May, 1976. It happened in this way. Three years ago, the wife of the appellant divorced the appellant in the native court; it is not known from the record what constituted the grounds of divorce. There is, however, some reference in the statement made to the police by the appellant exhibit 2A (but not in his sworn testimony in court) to some immoral relationship (i.e. adultery) between the deceased and the late wife of the appellant. Before this incident, the wife of the appellant who died a year after this incident (i.e. the murder of the deceased), left the husband's (i.e. appellant's) home; she thereafter lived with PW 4 her sister. On the fateful day, the deceased was carrying a pot of palm wine on the head to the wife of the appellant who, having left the appellant, now lived with her sister PW 4 (Anne Josua) when he was met on a narrow footpath by the appellant who was at the time walking to his new home in the village with two of his children. The evidence accepted by the learned trial judge is that the appellant immediately attacked the deceased, threw down the pot of palm wine he carried on his head and dealt several serious and severe matchet blows on him and he died later that day. There is evidence from one of the children of the appellant that when asked to whom he was taking the palm wine, the deceased had replied that he was taking the same to Dima (the wife of the appellant). In his defence in court, appellant made no mention of this latter statement of the deceased. His defence was that the deceased had damaged the flower plant he had planted by a palm tree given as a gift to his wife and he had warned him (the deceased) to replace the same. However, in his written statement to the police exhibit 2A (but not in his sworn testimony), he claimed that not only was the deceased in the habit of committing adultery with his wife (and that was three years prior to this incident), 4 out of 9 of his children by his wife had died since the spate of adultery with the wife; he believed their death was in consequence of his wife's persistent adultery with the deceased (i.e. her unfaithfulness).

The learned trial judge having examined the evidence in detail, rejected rightly in my view, the claim made by the appellant in his testimony in court that the deceased attacked him with a matchet in a fight on the fateful day. He considered the defence of provocation and held rightly, in my view, that it was not available to the appellant; and in the end he found him guilty of the offence of murder of the deceased.

The appeal from the judgment of the learned trial judge [Usoro, J.] by the appellant as rejected by the Federal Court of Appeal. In this court, learned counsel Mr. Shola Rhodes has submitted on behalf of the appellant that he should have been convicted of the offence of manslaughter. This submission, to say the least, is based on a complete misapprehension of our-laws relating to murder and manslaughter and I reject the same. I am of the firm view that the Federal Court of Appeal rightly rejected the appeal from the judgment of the High Court; and accordingly, this appeal will be and is hereby dismissed.

ANIAGOLU, JSC. On the law, the appellant's conviction for murder was entirely justified. I do not subscribe to the view, as propounded by appellant's counsel, that Abak inhabitants must be treated differently from other Nigerians and singled out as being so primitive that the standards laid down in Nigeria for provocation should be subjectively lowered for them. In the present case there is evidence that the appellant had parted permanently with his wife and a divorce suit granted by a court of competent jurisdiction. That was three years before the incident leading to these proceedings.

It is true that it was possible that the appellant might always have seen red whenever he met the deceased - a half-brother who maintained an illicit sexual relation with his wife. It might also be true that this act of the deceased might be looked upon as an abomination in the Abak town and its environs. Yet, the law is that retaliation to an act of provocation must bear reasonable relevance, in terms of proportion, to the provocative act. Assuming that the deceased told the appellant that he was taking the palm wine to the appellant's wife in execution of an oral contract for which the said wife had paid him and that this statement brought back to the appellant's memory the pains of the illicit sexual relations between the deceased and his wife, together with the thought of the death of his four children which he believed was caused by this illicit intercourse, would that have moved him into using his matchet-a lethal weapon-to cut up the deceased as he did? I think not.

It is perhaps fair to say that even if Abak was once known to be an area of matchet slashing, the jurisprudence of this country's legal system does not permit, in this year and age, a singling out of Abak for special consideration outside the laws and the constitution of this country.

The appellant, on the evidence, met his half-brother that evening, on the village road, and dealt severe matchet blows on him whether by reason, as he stated, of his flower plant having been uprooted by the deceased, or by reason, as postulated by the prosecution, of the appellant's ancient grudge in respect of the illicit sex with his wife. Either way, there was no circumstance to reduce the offence of murder to manslaughter as submitted by the defence.

In the result, I must dismiss this appeal which was argued only on law. The appeal is therefore dismissed and the conviction for murder confirmed.

UWAIS, JSC. The appellant was convicted of the murder of the deceased whom he met on the road carrying a pot of palm wine on his head and holding in his hands a matchet in a sheath and a lantern. The evidence accepted by the learned trial judge was that the appellant attacked the deceased with a matchet without provocation. Learned counsel for the appellant had argued that the appellant should have been convicted of manslaughter instead of murder because there was evidence from which provocation and a fight between the appellant and the deceased could have been inferred. I am unable to agree because in the absence of any finding by the learned trial judge that there was a fight or provocation by the deceased the conviction of the appellant for murder could not be reduced to manslaughter. It was not the appellant's contention that the trial court misdirected itself on the finding of facts but that the Federal Court of Appeal erred in law in failing to substitute a conviction of manslaughter. In my opinion the Federal Court of Appeal was right in affirming the conviction of murder made by the trial court. I therefore agree with my learned brothers that this appeal fails and that it should be dismissed. I accordingly uphold the decision of the Federal Court of Appeal and affirm the conviction and sentence passed by the trial court.

Appeal dismissed


Shola Rhodes (with him Adeniji Fashola) for the Appellant.

Miss Ime Essien Udom (Senior State Counsel Cross River State) for the Respondent.

Cases referred to:

Obaji v. The State (1965) NMLR 417.