Francis Ushie Vs The State (1972)

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COKER, JSC.

This is an application for leave by the applicant to appeal to this court against his conviction for manslaughter by Bassey, J., (High Court, Calabar, South-Eastern State).

The applicant was originally charged with the murder, on or about the 7th June, 1968, of one Gilbert Obi at Igoli in Ogoja Division of the South-Eastern State. Five witnesses gave evidence for the prosecution at the trial of the applicant. One of them, an eye-witness, by name Michael Ossang, a young boy of about 18 years of age, testified that on the 6th June, 1968, he returned from school with Gilbert Obi (later deceased) and another schoolboy described as of 16 years of age.

Gilbert Obi got on a bicycle and was riding it about in the yard when he, Gilbert, noticed that the son of the applicant was reading a book. Gilbert asked the boy to let him see the book but the boy refused to do so and thereupon Gilbert forcibly took the book from the son of the applicant, looked at it and returned it to the boy after doing so. The applicant’s son refused to take the book back and instead started to cry.

This witness further testified that at this point the applicant emerged from the house. The witness said:-

“Accused came out from his house and asked deceased why the boy was crying and deceased told him what had happened. I was around all the time. Accused then told deceased that he had warned us about his children and that he was going to teach deceased a lesson. He went back to his house and put on a pair of shorts. On coming out accused slapped deceased. Accused continued to flog deceased who was a boy of only 16 years. I went and separated them, but accused said he would show deceased that he came from Bakwara (in Ogoja). Accused went back into his house and came out with a cutlass and a bottle into our house. Our landlady intervened and took both cutlass and bottle from accused. Accused then picked a piece of firewood from the compound and pursued deceased.”

The witness continuing his evidence stated that the applicant pursued Gilbert Obi who had then run into the compound of his elder brother, caught up with him and dealt him blows on the head with a piece of fire-wood until Gilbert fell down and became unconscious. The witness denied that Gibert ever retaliated against the blows of the applicant and stated that when Gilbert fell down he was bleeding. Comfort Ayim, an imate of the same house as the applicant, testified to seeing the applicant carrying a cutlass and a bottle on the day in question and stated that as the applicant wanted to use them on Gilbert Obi, she pacified him and took away from him the cutlass and the bottle. She then saw the applicant pick up a piece of firewood and pursue Gilbert Obi with it. The applicant made three statements to the Police in which he stated that he had a fight with Gilbert Obi and that he had wrested the cutlass, the bottle and the piece of firewood in that order from him whilst Gilbert Obi attempted to use these things on him. He stated that he took the piece of firewood from Gilbert Obi, hit him three times with it. He stated that he had struck Gilbert with the piece of firewood in retaliation. At his trial, he gave evidence in his own defence and repeated the story which he had told in his statements. He added that he hit the boy Gilbert only once with the piece of firewood. In the course of a reserved judgment, the learned trial Judge convicted the applicant of manslaughter and sentenced him to 15 years I.H.L. The applicant has now brought this application asking for the leave of this court to appeal against that conviction. It is correct to observe that the learned trial Judge briefly reviewed the prosecution evidence in the course of his judgment, but it is difficult to see the basis of his judgment. The learned trial Judge seemed to be of the view that where there was evidence of fighting the offence could not be murder but manslaughter. This ‘is confirmed by a passage in his judgment which reads:-

“Beside, this being criminal trial, the told question is for the prosecution to establish that there was no provocation or self defence on the part of the prisoner. It is for them to establish that what the prisoner had committed is murder and not manslaughter.”

With respect, this is a completely mistaken view of the law and it is right to observe that the application of that wrong view had led the learned trial Judge to come to a verdict of manslaughter on what was manifestly a clear case of murder. The applicant is a man of some 32 years old and his defence was that he had fought with and struck dead a boy of 16 years. The doctor who performed the autopsy on the corpse of Gilbert Obi testified that he had died of extensive injuries to his brain structure; that the type of injuries could be caused by the application of external force by a blunt instrument and that the cause of death was traumatice intercranial haemorrhage from that part of his body. Undoubtedly the young man had been subjected by the applicant to a most savage attack in ventilation of an exceptionally uncontrollable temper. In those circumstances, the verdict is one of murder certainly and not one of manslaughter. The applicant has now applied to this court for leave to appeal against his conviction for manslaughter.

We think that he was fortunate to have got off with a conviction for manslaughter since he should have been convicted of murder. There are no merits in the application.

The findings of the learned trial Judge are based on evidence before him and which abundantly establishes the complicity of the applicant in this crime and the part he played in the killing of Gilbert Obi. The application for leave to appeal is therefore refused.

Other Citation: (1972) LCN/1256(SC)