Ubochi Iromantu V. The State (1964)

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AJEGBO, J.S.C.

On the 24th September, 1964, we granted the applicant leave to appeal against his conviction by the High Court of Eastern Nigeria holden at Umuahia and treated the application as appeal, allowed the appeal and said we would give our reasons later. We now do so.

The appellant was charged with the murder of one Patrick Ezigbo and convicted of manslaughter and sentenced to twelve years imprisonment. Against the conviction and sentence he has appealed to this Court.

Summarised, the case for the prosecution was that the appellant fired at the deceased during the Ekpe Festival in his village and killed him. The defence, on the other hand, was that the accused, armed with a gun and in company of Iheukwumere Ahidigbe was returning to his home at dusk from an Ekpe festival dance and that he saw three persons coming in front of him on bicycles; one of them, the deceased, gripped the gun held by the appellant. In an attempt to recover the gun from him the appellant accidentally touched the trigger and the gun went off and killed him. There was evidence that that was the very first occasion the appellant handled a gun in his life and that he did not even know how to load it.

The learned trial Judge accepted the evidence of the prosecution but because of the age of the appellant (he was 24) and his inexperience in handling a gun convicted him of manslaughter, instead of murder, and sentenced him to twelve years imprisonment. Concluding his judgement the learned Judge said: “I will give the accused the benefit of the doubt as to his intention when he voluntarily fired at the deceased.” With respect there does not seem to be any evidence before the learned Judge that the appellant “voluntarily” fired at the deceased. The fourth witness for the prosecution, Iheukwumere Ahidigbe, whose evidence the learned Judge accepted and about whom he remarked that he “more than any one else saw what happened” said under cross-examination:

“The Ekpe festival involved firing gun and killing goat. The guns are loaded with gunpowder and in some cases garri in addition. Accused is related to me. Accused’s gun and mine were not loaded with bullet. We both had guns on our shoulders. I did not actually see Accused aim a shot at the deceased but I heard the report of the gun after the cyclists had passed me. There was no dispute between the accused and the deceased.”

We are of opinion that if the learned trial Judge had properly directed his mind to the evidence before him he would have come to the conclusion that the prosecution had failed to prove that the firing was voluntary or that the circumstances disclosed a reckless disregard for the lives of others, and it would follow from this conclusion that by virtue of section 24 of the Criminal Code the appellant was not criminally responsible for the offence.

Part of section 24 of the Criminal Code reads: “Subject to the express provisions of this code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission, which occurs independently of the exercise of his will, or for an event which occurs by accident.”

For these reasons we allowed the appeal and set aside the conviction and sentence and entered a verdict of acquittal in favour of the appellant.

Other Citation: (1964) LCN/1117(SC)