IKPO KABAKA & ANOR v. THE STATE
(2010)LCN/4157(CA)
In The Court of Appeal of Nigeria
On Thursday, the 16th day of December, 2010
CA/B/172M/2008
RATIO
OFFENCE OF MURDER: THE ELEMENTS THAT THE PROSECUTION MUST PROVE BEYOND REASONABLE DOUBT IN ORDER 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. PER AMIRU SANUSI, J.C.A.
OFFENCE OF MANSLAUGHTER: WHAT MUST BE ESTABLISHED BEYOND REASONABLE DOUBT IN ORDER 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. PER AMIRU SANUSI, J.C.A.
MURDER/MANSLAUGHTER: EFFECT OF THE FAILURE TO PRODUCE OR TENDER OBJECT OR WEAPON USED ON A DECEASED VICTIM AT THE TRIAL COURT
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. PER AMIRU SANUSI, J.C.A.
MURDER/MANSLAUGHTER: WHAT MUST BE PROVED TO ESTABLISH A CHARGE OF MURDER OR MANSLAUGHTER AGAINST THE ACCUSED PERSON
In R vs. William Oledima 6 WACA 202, the West African Court of Appeal had this to say:- “Now to establish a charge of murder or manslaughter it must be proved not merely that the act of the accused person could have caused the death but that it did.” PER AMIRU SANUSI, J.C.A.
JUSTICES
AMIRU SANUSI Justice of The Court of Appeal of Nigeria
GEORGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
Between
1. IKPO KABAKA
2. LUCKY OGBEJOKO
3. J.J. OJEME Appellant(s)
AND
THE STATE Respondent(s)
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.
Learned respondent’s counsel further contended that unlike in the offence of murder where the prosecution must prove specific intention on the part of an accused/appellants to commit that offence, in the case of manslaughter the prosecution only need to proof several intention to do the act on the part of the appellant. See D.P.P. vs. New Bury (supra) at p. 509 per- Lord Salmon. In the instant case the prosecution had actually proved general intention on the party of the appellants. Referring to the appellants’ counsel’s contention that the lower court’s finding is perverse, the respondent’s counsel argued that there is no ground of appeal challenging the finding of the lower court that led to the conviction of the appellant hence such submission should be discountenanced as it is entirely misconceived. See Amerayo vs. The State (2001) 92 (RCN) 3225 @ 3227 para A-E. Also on the cause of the death of the deceased, the respondent’s counsel submitted that contrary to the contention of the appellants, counsel that there was no certainty on the cause of the deceased, he replied that there was really certainty on the cause of the death of the deceased because PW6, DW2 both agreed that the deceased who had a silent valvula heart problem could continue to rive a relatively normal life but additional stress could cause symptoms and signs. He said it therefore follows, that the use of planks to inflict injuries on the deceased by the beatings by the appellants caused the deceased additional stress causing his death.
In approaching this solitary issue for determination, a careful consideration of the evidence adduced in the case would be of imminence assistance. The prosecution in an effort to prove the charges of conspiracy to commit murder called eight witnesses. At the end of the case, the 5th and 6th accused persons were discharged following a no case submission made on their behalf which the trial court upheld and said that no prima facie case was made against them. The 1st, 2nd, 3rd and 4th accused persons gave evidence on oath in their own defence and called three witnesses jointly. In the end, the trial/lower court discharged and acquitted the 4rh accused and convicted 1st to 3rd accused (now appellants) of manslaughter and not murder as earlier charged. The 1st PW testified inter alia, that on the night of 9th May, 2006, the 4th accused, wife of the 4th accused (DW2, pW5, 5th accused and others were at the press Nite club. After a while they came outside the club for fresh air including the deceased. He said the deceased was hording a bottle of bear which suddenly fell down and broke. The 4th accused shouted at the deceased asking him why he broke the beer bottle and he told him that it was a girl who knocked it from his hand and it fell down. The 4th accused felt slighted, stating that he should know that he (4th accused) was in the club and threatened that it was going to be a war between Tony Kabaka’s family and Omono’s family the next day. He said the deceased knelt down begging for his forgiveness and was also joined by other persons around in kneeling down to beg the 4th accused who incidentally was chairman of their Society, they all belonged to.
The 4th accused also promised to send police or his younger brothers to deal with the deceased despite plea for forgiveness by the deceased and other persons around. PW1 further testified that on getting to his shop on 10/5/2006, he was informed that the deceased was in the hospital and he went to Central Hospital where he saw the deceased and observed some matchet cuts injuries all over his body. He said he then arranged his transfer to Faith Hospital as he was not satisfied with the way the deceased was treated. Under cross examination, the witness admitted that he was not present when the deceased was seized from his shop. PW2, a cousin to the deceased, rectified, inter alia, that on 10/5/06 at around 9.00 a.m. While he was with his brother Osagie, some traders came and told him a certain thing. As a result of what they were told by the traders, he went to Urhokpota Hall along Ring Road where he saw some boys including the 1st, 2nd and 3rd accused persons (now appellants) in a bus. He said he forced himself into the bus despite the effort of one Kapuepue Kabaka (now at large) to prevent him from entering the bus. He said later, after about an hour, one Ogie came to drop the deceased at the shop. He said at that time, he observed various wounds/injuries on the deceased’s body and he thereupon directed that the latter be taken to the hospital- He also denied witnessing when the deceased was beaten. PW3 while testifying told the court that on 10/5/06 at about 8.30 am., he was at the premises of No. 2 Oba Market Road or No. 1 Mission Road when some traders came to tell him that the deceased was being taken away by 4th accused’s brother. He said later after about one hour he got a phone call that the deceased had been returned. He quickly ran there where he saw the deceased with body injuries and he arranged for the deceased to be taken to the hospital. The PW4, one Kola Osula testified in line with the testimony of PW1 regarding what ensued at the hotel on 9/5/2006 in his presence along with PW1 and others especially the infuriation of 4th accused regarding the breaking of the beer bottle which angered the 4th accused and the latter’s threat to deal with the deceased despite repeated pleas for forgiveness by the deceased and the other people then around. He revealed how he, PW2 and PW3 took deceased to the hospital on 10/5/06 and that on the way to the hospital, the deceased told them that he was beaten by 3rd accused, 1st accused and others some of whom he did not know and were at large. He confirmed that when the deceased died he was also arrested but later released. He also denied being present when the deceased was beaten. The PW5, a girl while testifying stated that she was at the Prest Nite Club with PW1, PW4, 5th accused. She revealed the story about the alleged breaking of bottle by the deceased and the threat on the latter by the 4th accused.
The PW6 is the medical officer who examined the body of the deceased and as a pathologist gave detailed of the analysis of what caused the death of the deceased in his medical opinion to the effect that he died due to multiple lower limb injuries in a young adult with a valvular heart disease and that he died from the injuries and heart problem. The PW7 is the I.P.O. who recorded the confessional statements of the accused persons and the witnesses too. PW8, a superior police officer simply attested to the confessional statements made by the accused person and also the statements of the witnesses.
On the other hand, each of the three accused persons/appellants testified in his own behalf. Their testimonies are similar in substance and content. The bottom line is that they all admitted beating the deceased even though they said they did not expect him to die because he did not die from similar beatings he had received on other or previous occasions.
After concluding their testimonies in court, the accused persons (now appellants) proceeded to call their defence witnesses jointly. The first defence witness, one Yakubu Niyi Afolabi, a Prisons staff was simply led in evidence to tender visitors’ Note book and other documents and Visitors Application Forms for 25/6/2006, 28/9/2006 and 21/10/2006. The documents were admitted in evidence. He also tendered the Security and Safety note book, in which in-mates sign whenever they receive any intending visitor. DW2 is a medical officer called by the accused. He testified that the implication of an enlarged heart in a young man of 20 years is that the heart is diseased adding that a silent valvular problem means that there is heart valvular disease which allows the patient to live a relatively normal life but any additional stress may cause the patient to present with sign and symptoms. He also testified that a person with a normal heart will ordinarily not die from multiple injuries to the lower limbs but an individual with a diseased heart could die due to additional stress, which may be an injury.
DW3, is one Toyin Adun called by the 4th accused her husband, who testified on what transpired at the hotel on 9/5/2006. Her evidence tallied with that of PW1.
After reviewing the evidence adduced at the trial by the parties and duly considering the entire evidence, the lower court concluded thus:-
“The evidence before the court, is that the 1st, 2nd and 3rd accused person along with others now at large, beat the deceased seventy (70) times with a plank. . . .
In the circumstances of this case and in view of all that I have said above, I am satisfied that the 1st, 2nd and 3rd accused, although cannot guilty of murder are guilty of manslaughter and I so find. Consequently, I find the 1st, 2nd and 3rd accused person guilty of the offence of manslaughter and I convict them accordingly.”
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.
Reflecting from the evidence adduced from the instant case, there is no doubt that the prosecution has sufficiently proved the death of the deceased beyond any dispute. On this element, the evidence of PW6 the medical officer is relevant clear and indisputable, that the victim died due to the injuries he sustained on the outside which mainly consisted of blood collection in the soft tissue. He also found that the deceased heart was moderately enlarged above or beyond the normal weight of persons of the victims age. The doctor though admitted that the deceased had a valvular heart problem, but he was living with it and that the injuries he sustained on his lower limbs added too much stress on valvular bodily weak heart and so that, led to acute failure of the heart. He opined that the puncture wounds on the limbs were caused by pointed object. He concluded his report by saying that the cause of death was “multiple lower limbs injuries in a young adult with valvular heart disease”. The evidence of PW6 was somehow corroborated by the evidence of DW2 also a medical officer called by the accused persons when he also testified that “a silent valvular problem means disease which allowed the patient to live a relatively normal life but any additional stress can cause the patient to present with symptoms and signs”. The evidence of other prosecution witnesses who admitted taking the deceased to the hospital after he was retuned to his shop with bodily wounds as well as the defence witnesses are with the victim when he later died in the hospital.
The next issue is whether the deceased’s death was caused by the acts of the accused persons. In the case in hand all the three accused persons now appellants testified and admitted beating the deceased with planks from his waist and below. 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.
As I said supra, all the three accused persons admitted beating the deceased with seventy strokes of plank on his buttocks and limbs causing injuries on him. The medical evidence emanating from PW6, the medical doctor pathologist clearly linked the cause of the deceased’s death with the multiple injuries on the limbs of the deceased which said injuries were caused by the acts of the accused persons (appellants) as a result of their beating him with planks. There is no iota of dispute or doubt that the accused persons/appellants along with their other conspirators dealt the beating on him and later dropped him in the shop with such several injuries caused by them on the deceased. It is noted by me, that the accused/appellants that their beatings could not have caused the death of the deceased because according to them, they had no intention of killing him and that even though they agreed that they administered 70 strokes of plank on him they had did the worst exercise (or torture) on him previously yet he did not die. I think such defence is idle, untenable and of no moment. The evidence adduced by the prosecution at the lower court clearly established that it was the beatings dealt by them that caused the death of the deceqsed. What is material to my mind, and is also relevant is that it was the beatings that caused the injuries which ultimately led to or caused the death of the deceased as rightly found by the trial court. The fact that the deceased did not die during the previous beating occasions in my view, is not an excuse. Similarly, the suggestion by the defence that there could have been intervening facts that could have caused his death, for instance, the treatment he received in the hospital or hospitals is also untenable and porous as there is no evidence of any intervening factor at those hospitals adduced or shown by the defence or showing that wrong treatment or drugs were administered on him that led or could lead to his death other than the injuries caused on him through the beatings. I am therefore unable to see any justifiable reason to disagree with the conclusions of the trial court that the acts of beating by the appellants resulted in the death of the deceased herein. This is fully supported by the medical evidence presented by the two doctors namely PW6 and DW2. The next step now is to consider whether the acts of the appellants was intentional or with knowledge that death on grievous bodily harm was the probable consequence. Here it has been suggested by the appellant, that the prosecution did not prove that the appellant intended to kill the deceased apparently because the latter received worst beating previously. He argued that non-production of the planks in court by the prosecution is fatal to their case. 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. In the instant case evidence abounds that the accused/appellants dealt seventy strokes of plank on the deceased and thereby caused him bodily injuries which led to his death. In R vs. William Oledima 6 WACA 202, the West African Court of Appeal had this to say:-
“Now to establish a charge of murder or manslaughter it must be proved not merely that the act of the accused person could have caused the death but that it did.”
In the instant case there is ample evidence showing that the accused person dealt several beatings (70 strokes) on the deceased and caused bodily injuries on him. The accused persons also attested that in their statements and their testimonies in court. He was taken to his shop and PWs 1 and 2 rushed him to the said hospital. Evidence of the injuries on the deceased’s body were observed by these witnesses who took him to the hospitals. Also it has been established through cogent evidence that he died just few hours after the beatings or injuries he sustained.
The learned counsel for the appellants in fortifying his stance that the appellants neither intend to kill nor cause bodily harm on the deceased relied on the dictum of Uwaifo JSC at page 1571 in the case of Amayo vs. State (2002) FWLR (pt.91) 1571 where the learned jurist stated thus:
“Applying this case to the case at hand would a reasonable reasonable sober person conclude that beating a young man which plank will result in his death or grievous bodily harm? In my view, the reasonable and sober person’s likely to answer in the negative. He is more likely to answer in the affirmative if he were asked if the beating with plank will result in some kind of injury.”
With due deference to the learned counsel for the appellants, the facts in Amayo’s case based on which the learned luminary made the above observation are different from the facts in this instant case. Unlike in Amayo’s case, the accused/appellants and others at large herein dealt several or up to seventy beatings with planks on the deceased. There is also medical evidence in this case suggesting that the deceased suffered bodily injuries which led to his death just few hours after the said beatings. The beatings view (70 strokes) on lower limbs which the appellants confessed administering on the deceased must have caused deceased additional stresses that could and indeed caused his death. To my mind, it is of no moment for the appellants to say that they did not intend to hurt any person. The Supreme Court in the case of Idowu vs. State (2000) 12 NWLR (pt. 680) 48 held at p. 88 as follows:
“It is immaterial that the offender did not intend to hurt any person. In the instant case, while there can be no doubt that the prosecution did satisfactorily prove the above first three conditions under section 316(3) of the Criminal Code for the establishment of the offence of murder the prosecution did not establish beyond reasonable doubt that the act of the appellants was of such nature as to be likely to endanger human life, even though, in fact, it occasioned the death of the deceased. The facts proved by the prosecution to constitute an unlawful killing and the appellant must therefore be found guilty of the offence of manslaughter contrary to Section 317 of the Criminal Code and not murder.”
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).
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.
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. In the instant case, I am fully convinced that the trial court had indeed exercised those functions creditably well before it arrived at its conclusion and convicted the three accused/appellants of the offence of manslaughter. I agree entirely with its finding of fact and the conclusion it arrived at based on the evidenced presented before it. I am equally convinced that the trial court did not fail to properly evaluate the evidence adduced before it resulting in its finding the accused guilty of the offence of manslaughter convicting and sentencing them on the said offence. As an appellate court, the law does not in the present circumstance allow me to interfere with or disturb the trial court’s findings and conclusion. Apropos of the above, I resolve the solitary issue raised by the appellants’ counsel against him. In doing so, I also hold that there is sufficient evidence adduced before the learned trial Judge to warrant him convict the three appellants for the offence of manslaughter.
In the result therefore, I hold that the appeal is unmeritorious and deserves to be dismissed and I accordingly do same. The judgment of the lower trial court in Suit No. B/56C/2006 delivered on the 29th of August 2007 is hereby affirmed by me.
GEORGE OLADEINDE SHOREMI, J.C.A.: Having been privileged to read before now the leading judgment just delivered by my Lord SANUSI JCA. I agree with his reasoning and conclusion with respect I adopt the reasoning as mine in the final analysis, I hold that the appeal is unmeritorious and ought to be dismissed. I accordingly dismiss same I affirm the judgment of the lower court in case No.B/56C/2006 delivered on 29/8/2007.
A. A. B. GUMEL, J.C.A.: I have had the privilege of reading the draft of the lead my learned brother Sanusi, JCA., I agree that this appeal lacks merit and it ought to be dismissed. I also agree that the judgment of the lower court ought to be affirmed and I hereby so do.
>
Appearances
R. O. Isenalumhe Esq. For Appellant
AND
M. O. Airender Esq. For Respondent
