MICHEAL v. STATE (2020)

MICHEAL v. STATE

(2020)LCN/14167(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Tuesday, May 19, 2020

CA/A/749C/2018

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Peter Olabisi Ige Justice of the Court of Appeal

Emmanuel Akomaye Agim Justice of the Court of Appeal

Between

TONY MICHEAL APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

THE LEGAL DUTY OF THE TRIAL COURT

It is settled law that it is the legal duty of a trial Court to is to consider all the defences that are probable on the evidence before irrespective of whether such defences are raised by the accused or not. The Court is under a legal duty to consider and determine such defences suo motu even if the accused did not raise them. See Fadina v. R (1984) SCNLR 250 and Udofia v. The State (1984), Edibo v. State (2007) 5 SC 135, Annabi v. The State (2008) 4 – 5 SC 179 and Sani v. The State (2017) LPELR – 43475 (SC). PER AGIM, J.C.A.

WHETHER OR NOT THE DEFENCE OF PROVOCATION CAN AVAIL AN ACCUSED PERSON WHERE HE HAD SUFFICIENT TIME TO COOL OFF HIS ANGER

The defence of provocation cannot be invoked on the evidence as it is to diminish the appellant’s criminal responsibility for mischief by fire that was carried out as revenge after the appellant had sufficient time to cool down and was not in the heat of passion. See Uwaekweghinya v. The State (2005) LPELR – 3442 (SC) and Ashimiyu v. The State (1982) 10 SC 1. The burning of PW2’s motorcycle by the appellant on 6-5-2015 was not a natural and justifiable reason of the appellant in ventilation of a natural, sudden and contemporaneous feeling of anger caused by the destruction of his properties a day before, on 5-5-2015. It was purely a retaliatory act of self revenge. See Akang v. The State (1971) 1 All NLR 46 and Afosi v. State (2013) 13 NWLR (Pt 1371) 329. PER AGIM, J.C.A.

EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): This appeal No. CA/A/749C/2018 was commenced on 30-6-2017 when the appellant herein filed a notice of appeal against the judgment of the High Court of Kogi State at Ankpa in Criminal case No. AHC/7C/2016 delivered on 28-6-2017 by A.N. Awulu J. The notice of appeal contains five grounds for the appeal.

Both sides filed, exchanged and adopted their respective briefs as follows- appellant’s brief and respondent’s brief.

The appellant’s brief raised one issue for determination thusly- “Whether the prosecution proved beyond all reasonable doubt, that the appellant is guilty of the offences of conspiracy, mischief by fire and voluntarily causing hurt in view of the state of evidence led at the trial Court.“

The respondent raised the following issues for determination-
1. In the light of the avalanche of evidence adduced against the appellant, whether the learned trial Judge was right when he held that the offences of causing mischief by fire, conspiracy and causing grievous hurt were proved beyond reasonable doubt against the appellant (Grounds 1, 2, 4).

Whether the prosecution is bound to call a host of witnesses in proof of its case (Ground 2).I will determine this appeal on the basis of the issue raised for determination in the appellant’s brief.Learned Counsel for the appellant argued that the appellant burnt the PW2’s motorcycle because he was provoked by the destruction of his motorcycle and other properties by PW2 and other persons, that the burning of PW2’s motorcycle by the appellant was proportionate and reasonable in the circumstances and that the retaliatory effect was commensurate with the destruction of his motorcycle and other properties by PW2 and other persons, that the provocation of the appellant was exacerbated by the refusal of the Gago (traditional ruler) and the police to act against PW2 and the persons that destroyed the appellant’s properties, that the entire circumstances coupled with his low education and social standing exonerated him and the trial Court was in error to have convicted him of the offence of mischief, that the prosecution evidence did not negate the defence of provocation which first arose in exhibit P1, the

extrajudicial statement of the appellant, that the trial Court did not consider the availability of this defence to the appellant, that the trial Court had a duty to consider all the defences probably available to the appellant, that the failure to consider the said defence is fatal to the conviction of the appellant for the offence of mischief by fire.

Learned Counsel for the respondent argued in reply that the defence of provocation was not available to the appellant, that the burning of PW2’s motorcycle was not done in the heat of passion caused by a sudden provocation without time for passion to cool, that the appellant was in control of himself when he burnt PW2’s motorcycle without provocation by PW2, that the defence of provocation was not raised by the appellant at the trial Court, both in his evidence and final written address, that the appellant ought to seek leave of Court to raise it in this appeal as a fresh issue, that the argument on the defence of provocation should be discountenanced.

Let me now consider the merits of the above arguments of both sides.
It is settled law that it is the legal duty of a trial Court to

new_anno consider all the defences that are probable on the evidence before irrespective of whether such defences are raised by the accused or not. The Court is under a legal duty to consider and determine such defences suo motu even if the accused did not raise them. See Fadina v. R (1984) SCNLR 250 and Udofia v. The State (1984), Edibo v. State (2007) 5 SC 135, Annabi v. The State (2008) 4 – 5 SC 179 and Sani v. The State (2017) LPELR – 43475 (SC). The failure of a trial Court to suo motu consider a defence that is obviously available to the accused on the evidence can be a ground of an appeal against his conviction and would not need leave to appeal on that ground as a fresh issue on appeal. This is because it is an issue that arises from the evidence and the judgment of the trial Court.

In our present case, there is no ground of this appeal complaining that the defence of provocation was available on the evidence but that the trial Court failed or neglected to consider it and it was not raised as an issue for determination in this appeal. So all the above arguments of Learned Counsel for the appellant that the defence of provocation was available to

the appellant on the evidence before the trial Court, that the trial Court should have considered and determined it and that its failure to consider it should vitiate the conviction is incompetent and not valid for consideration. All arguments of an appeal must be based on issues for determination that validly arose from the grounds for the appeal. Arguments not based on any ground of an appeal and not addressing any issue raised for determination from such ground is incompetent and not valid for consideration. See Olumolu v. Islamic Trust of Nigeria (1996) LPELR – 2626 (SC).
For the above reasons, the arguments of Learned Counsel for the appellant concerning the defence of provocation are incompetent and are hereby struck out.

In any case, the defence of provocation was obviously not available to the appellant on the evidence. In exhibit P1, his extrajudicial statement, the appellant stated that his motorcycle and other properties were burnt on 5-3-2015 and that he reported the matter to the chief of his village but nothing was done. He then stated further thusly- “On 6/06/2015 at about 2300 hrs, myself and my cousin Unekwu Moses agreed

to go on revenge and we went and attacked Mathew Ochebe with cutlasses and burnt down his motorcycle and matchetted him on the hand when he was dragging with us not to burn the motorcycle. That the wife of Mathew was there but she ran away. That after we have attacked Mathew Ochebe, my cousin Unekwu Moses told me that a native doctor told them that one Jani James of the same address is a witch and that she was the person who killed his father Moses and told me that we should go and kill her. But I told him that I will not be able to kill and he told me that I should only broke the door of the woman room and he will enter the house and kill the woman. Then we went to the woman house and I broke the door with hand piston and my cousin Unekwu Moses went inside the room and machete the woman while she was asleep. That Unekwu Moses was holding axe while I was with machete. After we have finish we throw away the cutlass and the axe in the bush when we were about to travel to Ondo State on the 7/6/2015 we did not steal any money from Mathew Ochebe’s house. It was Unekwu Moses who cut the palm oil gallons in Jani James house and some plate. That when the village

were pursuing us we were running and we throw away the cutlass and axe. The axe was owned by Unekwu while I owned the cutlass.”

The appellant testified as DW1 in examination in chief thusly- “I know PW2. PW2 is my in-law. I am married from his family. The girl’s name is Tina Audu. I have done the introduction. After the introduction, I travelled. I came back after a while. I came home with a motorcycle. I learnt that the girl was dating another man while PW2 was also trying to give the girl out in marriage to another person. I said I would only believe the story when I confirmed same. Four days after my return, I strolled from my house to the neighbour-hood. I saw the girl with the new man in her life. When we met, I called Tina aside to speak to her. She obliged and I began to talk to her. She began to insult me and shout on me. I queried her on why she was shouting on me. I told her I had spent about twenty thousand on her and that if I saw another man with her, she could have to refund my money or I would take her before the Gago. Because of her shouting, I became angry and I struck her with my hand. She began to wail and the man with

her started to fight with me. People came and separated us. People blamed Tina for her inability to stay in a place and in the process causing trouble between two men. We thereafter went our separate ways. Later that day, at about 4:00pm to 5:00pm, I was in my father’s house when I saw four persons. Amongst them was the person I had a fight with earlier that day. Also, PW2 was in the group. The person I fought with was carrying a knife while the others carried sticks. They began to fight with me. Seeing I could not withstand them and having been wounded, I ran away. My brother was present when the four came to attack me. My brother’s name is Innocent Michael. My motorcycle parked under a cashew tree in our compound was vandalized by the attackers and set ablaze. Also they brought out my generator, compact Disc (CD) and television and destroyed them. When I came back to our compound, I saw my properties destroyed I complained to the Gago, Sani Ameh. The Gago advised that I report to the police as the case was outside his powers. I went to the police at Ogugu to report. The police drove us away. On getting home, I became angry seeing my properties

destroyed. I went to the house of PW2. I saw him sitting in his compound and a motorcycle park under a mango tree in his compound. His wife was cooking. I pushed the motorcycle down. I ran to where his wife was cooking. I set the motorcycle ablaze. Thereafter, I left his compound. I heard the police from Okpo came looking for us. I escaped to where I was working and earning my living. I went to the house of PW2 in the day time. I have heard the name Jeni James before. I did not know her in person. I was working in the place I escaped to stay with the elder brother of the 2nd accused who was at the material time in the village. I was still there till June 2015 when the 2nd accused called his elder brother to say he was visiting him. The elder brother of the 2nd accused is Iko Moses. The 2nd accused said the 2nd accused should be sleeping in my room as the elder brother had a wife and a child. The place is Olorun Bami duro in Ondo State. About four days after the arrival of the 2nd accused, the police came and arrested us. I made a statement at the police station, Akure. We were transferred to Lokoja. We made statements at Lokoja. Inspector Dennis recorded

my statement in Lokoja. I signed the statement after the recording. I can recognize the said statement. Exhibit P.1 shown to me is the statement I made at Lokoja. After about three days, we were taken to our homes for further investigation.”

Under cross-examination the appellant stated that “what I have told the Court I also told the police in Lokoja”.
It is glaring from his extrajudicial statement in exhibit P1 and his testimony as DW1, that the burning of PW2’s motorcycle on 6-5-2015 was an act of revenge for the destruction of his properties on 5-5-2015, after he had reported the incident to his village chief and the police. Clearly it is an act of revenge that was not done in the heat of passion as the appellant had sufficient time to cool down.
The defence of provocation cannot be invoked on the evidence as it is to diminish the appellant’s criminal responsibility for mischief by fire that was carried out as revenge after the appellant had sufficient time to cool down and was not in the heat of passion. See Uwaekweghinya v. The State (2005) LPELR – 3442 (SC) and Ashimiyu v. The State (1982) 10 SC 1. The

burning of PW2’s motorcycle by the appellant on 6-5-2015 was not a natural and justifiable reason of the appellant in ventilation of a natural, sudden and contemporaneous feeling of anger caused by the destruction of his properties a day before, on 5-5-2015. It was purely a retaliatory act of self revenge. See Akang v. The State (1971) 1 All NLR 46 and Afosi v. State (2013) 13 NWLR (Pt 1371) 329.
In the light of the foregoing, I uphold the trial Court’s conviction of the appellant for the offence of mischief by fire.

Let me now consider the arguments of both sides concerning the appeal against the conviction of the appellant for causing hurt to PW2 and his son and Jeni Jones.

Learned Counsel for the appellant argued that there was no evidence at all that the appellant and Moses Unekwu caused hurt to PW2 and Jeni Jones, that the evidence of PW1 to PW4 upon which the prosecution’s case was predicated are manifestly unreliable and full of gaps and contradictions, that the prosecution did not call vital witnesses such as the policeman that took PW2 to the hospital, the medical doctor that treated PW2 and Jeni Jones, that the

prosecution did not tender the medical report of the treatment of PW2 and Jeni Jones, that the prosecution did not tender the medical report of the treatment of PW2 and Jeni Jones, that the failure to call the said police officer and medical doctor and the failure to tender the said medical report raises the presumption that the evidence would have been unfavourable to the case of the prosecution, that PW4’s testimony is not reliable having regard to the evidence of PW1.

Learned Counsel for the respondent argued that the failure of the prosecution to call as witness the police officer that took PW2 to the hospital and the medical doctor that treated PW2 is not fatal to the case of the prosecution as the evidence of PW2 was sufficient, that the respondent called witnesses it considered material and necessary to prove its case, that nothing stopped the appellant from calling the said police officer and medical doctor to rebut the prosecution’s case that PW2 and Jeni Jones were grievously wounded by the appellant, that the evidence of PW2, PW3, PW4 and PW5 who were eye witnesses to the commission of the offence was enough to prove the case of the

prosecution.

Let me now determine the merits of the arguments of both sides.
The prosecution’s evidence through PW1 and PW4 and exhibit P2, the extrajudicial confession of the appellant prove that the appellant in concert with Unekwu Moses caused hurt of Jeni James and PW2 by dangerous means. PW1 testified that “On 7th June, 2015, the accused person murdered my mother in her room. On the fateful day, I was sleeping in my room with my little child, Eleojo. I suddenly heard a gunshot outside. I woke up in fear and trembling. I heard bottles been broken outside. I heard my mother’s door being cut down. He door faces mine. I ran out knowing my mother’s door was being forced open. Coming out of my room, I saw the accused persons coming out of my mother’s room. They asked me if I wanted to die. They flashed a touch light on their faces before asking me if I wanted to die. The first accused was carrying an axe. The second accused had a knife. The first accused was hanging a bag which there was a gun. I ran back into my room and bolted the door. The accused persons hit the door with the axe. I later came out and entered my

mother’s room. I asked my mother what happened. She said two boys came to her room and inflicted the wound on her and that she would not survive. I saw that she had wound on her and that she would not survive. I ran to the Gago (village head), David Ameh and reported what happened to my mother. The Gago came and saw my mother. He advised I should took my mother to the hospital. I took her to the hospital accompanied by a policeman. Three hospitals in Okpo refused to accept her before I brought her to living hope hospital Ankpa. After fifteen days, the Doctor advised me to take her home. She died at home. After the death of my mother, I lodged a complaint with the police at Okpo before I was allowed to bury her. Subsequently, the police from Lokoja with the accused person who pointed out to the police where my mother laid before she was attacked.”

Exhibit P2 corroborated by the testimonies of PW1 and PW4 support the conviction of the appellant for voluntarily causing hurt to Jeni James and PW2. It is obvious from exhibit P2 and the testimonies of PW2 and PW3 that the appellant acted in concert with Unekwu Moses in committing the above offences.

On that fateful day, both appellant and Unekwu Moses who had been told by a native doctor that Jeni James was a witch and was responsible for the appellant’s father’s death and who had been reported to the police station for uprooting plantain suckers which PW2 claimed were his, set out together to attack PW2 and his family and Jeni James and in the process burnt PW2’s motorcycle. Their conspiracy is very obvious from the evidence and can be inferred from their acting in concert to commit the offences. The evidence supports the conviction of the appellant for criminal conspiracy to commit the said offences. See Onochie V. Republic (1966) 1 SCNLR 204 and Utu V. State (2019) LPELR – 46524(CA).

In the light of the foregoing, I resolve the sole issue for determination in favour of the respondent.
On the whole, this appeal fails as it lacks merit. It is accordingly dismissed.

STEPHEN JONAH ADAH, J.C.A.: I have had the benefit of reading before now a copy of the draft of the judgment just delivered by my learned brother, Emmanuel Akomaye Agim, JCA.
I am in agreement with the reasoning and the conclusion that this appeal is lacking

in merit. I too, do dismiss the appeal.

PETER OLABISI IGE, J.C.A.: I agree.

Appearances:

Ehi Uwaifoh Esq., with him, Kenechukwu Maduka, Esq. For Appellant(s)

Etukwu Onah Esq. For Respondent(s)