EZE v. THE STATE

…………………….A…………………….

AMINA ADAMU AUGIE, J.S.C. (Delivering the Leading Judgment): The Appellant is one of the “Bakassi Boys”, leaders and members of the Abia State Vigilante Group known as “Bakassi’, who were convicted and sentenced to death for the murder of two persons, Chukwudozie Nwachukwu and Okechukwu Maduekwe, and this Appeal turns on the issue of whether the conviction for murder should be substituted with conviction for manslaughter instead.
The facts as established at the Abia State High Court is that on 9/7/1999, the Appellant and three other Bakassi Boys, namely, Ezeji Oguikpe, Stanley Azogu. and Adiele Ndubuisi, were invited from Aba, where the said group is based to Government House, Umuahia, by Ndukwe Okereke, a State Security Service official.
At the Government House, they met the then Secretary to the State Government, Dr. Elekwachi Nwaogbo, who instructed the S.S.S. official, Ndukwe Okereke, to take them, Bakassi Boys, to the Safari Restaurant at Umuahia, where they confronted the people they met with dangerous weapons, including cutlasses, knives and guns. In the process, the said two deceased persons, were killed and their mutilated bodies dragged to the main road where their remains were set ablaze by the said Bakassi Boys.
The Abia State High Court found the Appellant, who was the second Accused, guilty of the offence of murder, and convicted and sentenced him to death accordingly. The Court of Appeal was also convinced, after reviewing the evidence, that he was guilty of the offence of murder, and affirmed the trial Court’s decision.
Further aggrieved, the Appellant has appealed to this Court with a Notice of Appeal containing five Grounds of Appeal, and he formulated one Issue for Determination in his Brief of Argument:
Whether the conviction for Murder ought not be substituted with a verdict of Manslaughter.
The Respondent formulated a similar Issue for Determination in its Amended Brief of Argument, but couched differently, that is –
Whether or not the Court of Appeal was not right when it affirmed the conviction for the offence of murder handed down to the Appellant.
The Issues formulated by both Parties raise the same question – whether the Appellant was rightly convicted for murder or not?
The Appellant contends that the Court of Appeal “burdened by sentiments over the setting ablaze of the victims after their death” upheld his conviction for murder “despite the fact that the evidence on record did not support a conviction for murder”.
He argued that the defence of provocation was successfully established by the evidence on record and the Court of Appeal “ought to have set aside sentiments at the admittedly bestial treatment of the dead bodies and substitute the conviction for murder with that of manslaughter. He cited the following on the definition of manslaughter, and the ingredients thereof vis-a-vis that of murder – Sections 317 and 325 of the Criminal Code Act. Akang V. state (1971) 1 All NLR46, Stephen V. State (1986) 5 NWLR (Pt. 46) 978 and Ukwunnenyi V. State(1989) 4 NWLR(Pt. 114) 131.
He further submitted that the defence of provocation is an extenuating factor that reduces the harshness of punishment of death for murder; and that it is pertinent to determine whether the said defence availed him, and if so, whether the verdict of Murder ought to have been substituted for that of Manslaughter. He proffered arguments under the following subheadings –
1. Whether he was provoked?
2. Whether the provocation was grave?
3. Whether the act causing death occurred in the heat of passion?
4. Whether there was time to cool before the occurrence of the act causing death?
5. Whether the act causing death was proportionate to the provocation?
On the first question – whether he was provoked, he referred to Black’s Law Dictionary 8th Ed. on the definition of provocation, which includes “the act of inciting another to do something, especially to commit a crime, andR v. Doughty(1986) 83 Crim LR 625, and in answer to the question whether the crime committed on 9/7/199 was “incited or caused”, he submitted as follows –
The Government had incited the group by not only informing them of the whereabouts of suspected criminals, but by also proceeding to identify