RASHEED AMINU v. THE STATE (2014)

RASHEED AMINU v. THE STATE

(2014)LCN/7535(CA)

In The Court of Appeal of Nigeria

On Friday, the 14th day of November, 2014

CA/B/102c/2009

RATIO

EVIDENCE: CONFESSIONAL STATEMENT; WHETHER WHEN A CONFESSIONAL STATEMENT IS ADMITTED, THE EXCULPATORY PART MUST ALSO BE ADMITTED

When a confessional statement is admitted, the exculpatory part must also be admitted. The court is free to accept or believe which portion of it and reject another if, for good reason, this course of action is warranted by clear evidence.
See: Adamu Garba V. The State (1997) 2 NWLR 144, at 163; R V. John Agariga Itule (1961) 1 All NLR 462, (1961) 2 SC NLR 183 FSC. per. MOJEED ADEKUNLE OWOADE, J.C.A.

CRIMINAL: THE DEFENCE OF SELF DEFENCE; WHAT AN ACCUSED MUST SHOW FOR THE DEFENCE OF SELF-DEFENCE TO AVAIL HIM

Now, for the defence of self-defence to avail an accused person he or she must show that his life was so much endangered by the act of the deceased, that the only option that was open to him to save his life was to kill the deceased. The defence of self defence will only fail if the prosecution shows beyond reasonable doubt that what the accused did was not done by way of self-defence. Apuga V. State (2006) 16 NWLR (pt. 1002) 227. per. MOJEED ADEKUNLE OWOADE, J.C.A.

CRIMINAL LAW: THE DEFENCE OF SELF DEFENCE; THE COMMON LAW RETREAT CONCEPT

Meanwhile, our courts have given sufficient imprimatur for the existence of the common law retreat concept in self-defence under the Nigerian criminal law. For example, in The State V. Fatayi Baiyewunmi (1980) 1 NCR 183, the Supreme Court made it clear that “— it is not the law that a person threatened or attacked must take to his heals and run away; but that he must demonstrate by his actions that he did not want to fight”.
Also in the case of Sunday Baridan V. The State (1994) 1 NWLR (pt. 320) 250 at 262, the Supreme Court again speaking through Iguh JSC (as he then was) said; “He must show that he did not want to fight and that he was at all material times prepared to withdraw”.
See also, Odu V. The State (2001) 10 NWLR (pt.722) 668. Therefore, in deciding whether the force used in self defence was reasonable, all the circumstances may be considered. The matter is one of fact and not one of law, hence it cannot be ruled that a person who is attacked must retreat before retaliating. A person’s opportunity to retreat with safety is a factor to be taken into account in deciding whether his conduct was reasonable, as is his willingness to temporize or disengage himself before resorting into force. See: R V McInnes (1971) 3 All ER 295, 55 Cr. App Rep. 551, CA. per. MOJEED ADEKUNLE OWOADE, J.C.A.

JUSTICES

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria

Between

RASHEED AMINU Appellant(s)

AND

THE STATE Respondent(s)

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of P.I. Odunwo J. of the High Court of Justice, Ondo State sitting at Ikare Akoko delivered on 14th day of May 2008.

The Appellant was charged with murder contrary to Section 316 (2) of the Criminal Code cap 30 Vol. 11 Laws of Ondo State of Nigeria 1978. The case of the prosecution against the Appellant was that on or about the 9th day of July 1999 at Agbaluku Arigidi Akoko in Ikare Judicial Division the Appellant killed one Sadiq Jimoh by hitting him on the head with an axe.

The late Sadiq Jimoh was hired by the daughter of PW1 one Fausatu Kolade as a labourer in the farm leased from PW2. When PW1 heard that the hut in her daughter’s farm had collapsed, she went to look for the deceased in the house. When PW1 got to the house of the deceased, she was told that the deceased went to her daughter’s farm and had not returned. On getting to the farm, PW1 saw the Appellant (a stranger) and on inquiring about the deceased, the Appellant denied knowledge of the whereabouts of the deceased. PW1 went to the house of PW2 to report that she did not see the deceased.

PW1 and PW2 went to the farm to search for the deceased but did not see the deceased. Later that day, some people informed PW1 and PW2 that they saw the appellant bleeding from severe matchet cuts on his body on the road. PW1 and PW2 went there to meet the Appellant. PW2 took the Appellant to his house, gave him food and delegated people to watch over him.

Further searches of the farm revealed the dead body of the deceased in a decomposing state under some leaves. The local police were invited. They took photographs (id 1 to id 3) and then took the body to a morgue. PW3, IPO from Ikare Police Station obtained a statement from the Appellant – Exhibit A. In Exhibit A, the Appellant denied killing the deceased. However, he made a confessional statement to the police at Akure – Exhibit C.

The Appellant retracted the confessional statement at the trial but the defence nevertheless rested their defence on Exhibit C. That the Appellant gave a graphic account of what happened in Exhibit C. that he had just been released from prison and some people gave him N200.00 for transportation. He was dropped at an unexpected junction and had to trek for about 5 kilometers for a whole day without getting to his destination. He became weak and tired. He went into a hut in a farm, did not see anyone but noticed that corn was being boiled. He went in took some of the corn and started eating it. When the deceased came, he attacked him with matchet cuts to his head and all parts of his body. He reached out for an axe in the hut and used it to cut the deceased. The deceased sauntered off from the hut and died.
PW2, PW3 and PW4 also testified that the Appellant had matchet cuts on his body and PW4 said there was evidence of a struggle between the deceased and the Appellant as even the wooden bed in the hut was stained with blood.

The prosecution called four (4) witnesses and tendered three (3) Exhibits and three (3) photographs as identification. The Appellant did not call any witness but testified in his own defence.

The learned trial judge relied on exhibit C and other circumstantial evidence as proof of the killing of the deceased by the Appellant. He considered the defences of self-defence and provocation but could not find any of the defences in favour of the Appellant. He found the Appellant guilty as charged for the offence of murder and sentenced him to death accordingly.

The Appellant first gave a Notice of Appeal on 30/6/2008. But later, by leave of this court filed an Amended Notice of Appeal containing five (5) grounds of appeal on 31/03/2014.

Appellant’s brief of argument dated 22/10/2013, filed on 23/10/2013 was deemed filed on 31/03/2014. Respondent’s brief of argument dated 2/04/2014 was filed on the same day. Learned Counsel for the Appellant nominated two (2) issues for determination. They are:-
1. Whether on the evidence which the trial court accepted the defence of self defence and provocation were available to the Appellant.
2. Whether the findings of the trial court were not perverse.
The Learned Counsel for the Respondent adopted the two issues formulated by the Appellant.

On issue 1 Learned Counsel for the Appellant led us into the content of Exhibit C – the Appellant’s confessional statement for us to appreciate the need for the learned trial judge to have considered and apply the defence of self-defence in favour of the Appellant. He referred to what he termed other relevant bits and pieces of evidence touching and concerning the subject of self defence as follows:
1. At page 17 of record lines 9 to 16 PW1 said “some body with matchet cuts all over his body along the road. I told the woman that we could see the person if he is the labourer. Myself and the woman left for the road and we saw the person with matchet cuts on his body. The person is the accused person. I asked for his whereabout and he said he was going to his mother’s town i.e. Ayere. I told him that the place is not the road to Ayere. I asked the cause of his wounds and he told me that some people matcheted him. I had sympathy for him and I took him to my house to treat him.
2. At page 20 lines 1 to 3 PW2 said:
“I went to see the farm house where I noticed that the wooden bed was full of blood. The blood was seen in the farm house built in the farm. The woman stated (sic) started shouting”.
3. Under cross-examination. PW2 also said at page 20 to 21
“I saw matchet cuts on the arms and legs of the accused person. The cuts were severe and if taken to the hospital would haven (sic) have been stitched— I would not know if the blood in the farm house was the blood of the accused person”.
4. At page 22 of the record at lines 14 and 15, the (I.P.O) PW3 said:
“I was surprised on seeing the accused person because there were matchet cuts all over his body”.
5. PW4 (another policeman that investigated the case said at page 26 lines 3 to 11
“At the scene, I found blood stain at the farm hurt or house of the deceased ——” I saw marks of struggle between the accused and the deceased. The accused person also redemonstrated his action to me —- When the accused came to the station I saw marks of violence on his body. The accused person in his confessional statement explained how the deceased matcheted him before he used the axe to hit the deceased head”.
6. Under cross-examination at page 28 lines 10 – 11, PW4 also said:
“I observed that there were marks of struggles between the accused person and the deceased on the scene”.

Learned Counsel then submitted that the law covering the subject of self defence are Section 33 (2) (a) of the Constitution of the Federal Republic of Nigeria, Sections 286 and 287 of the Criminal Code, Laws of Ondo State.

Learned Counsel submitted further that the principles of law that could be distilled from the cases on the subject matter of self-defence are as follows:
1. The onus is always on the prosecution to prove that the accused did not kill the deceased in self defence.
On the above, he referred to the cases of Laoye V. The State (1985) 2 NWLR (pt. 10) 832, Baridan V The State (1994) 1 NWLR (pt. 320) 253; Onwe V The State (1975) 9 NSCC 23; R V Oshunbiyi (1961) 2 SCNR 147; Davis Ikpe V The State (1977) 4 FCA 145.
2. The nature of the attack on the Appellant by the deceased was such as to cause a reasonable apprehension of death or grievous bodily harm.
Counsel referred to the cases of Aganwonyi V A.G. Bendel State (1987) 18 NSCC (pt. 1) 30; R V Onyemaizu (1959) NMLR 93; R V Nwibo (1950) 19 NLR 124 and Laoye V The State (supra)
3. The proportionality of the response by the Appellant to the attack by the deceased.
On this, Counsel referred to the cases of Nwanga Nwuzoke V The State (1988) 1 NWLR (pt.72) 529 to 538; Odu V The State (2001) 10 NWLR (pt.722) 668; Ibikunle V The State (2007) 1 SC (pt. 11) 22.
4. The Appellant must show that he retreated and did not want to fight.
He referred to the cases of Sunday Baridan V The State (1994) 1 NWLR (pt. 320) 250 at 262, Stephen V The State (1986) 2 SC 450; Nwede V The State (1985) 12 SC 32; The State V John Umunu (1986) NWLR 15 at 20.

Counsel added on the above referring to the cases of Uwaekweyinwa V The State (Supra); Opera V The State (1971) NMLR U R V Igwe (1938) 4 WACA 117 and R. V Blake (1942) 8 WACA 118 that though the accused must show that he took steps to disengage from the fight. But that the issue of disengagement depends on the peculiar circumstances of each case. In that, sometimes it may be possible to run away from the attack but that at other times it may be impossible to physically withdraw.

5. The defence is available even where the person who causes the death provoked the assault, where the person assaulted reacts with such violence to raise in him the apprehension of death or grievous bodily harm.
On this, Counsel referred to the case of Laoye V The State (Supra) and argued that the above requirement is in tandem with Section 224 of the Criminal Code.

In applying the stated principles to the facts and circumstances of this case, Learned Counsel submitted that in the instant case, the court can only rely on the story of the Appellant and that in looking at the relative conditions of the parties, after the event, it is obvious that the Appellant was severely injured by the deceased.

In relation to the test of proportionality, Counsel submitted that the response with an axe for deadly matchet blows is an appropriate response. He argued that both are weapons capable of causing death or grievious harm. And, that in any event, we should not be looking at the weapon when the objective of the defence is to save one’s life from imminent death.

He referred to the cases of Uwaekweghinya V The State (supra); Laoye V The State (1985) 2 NWLR (pt. 10) 832 at 843; Apugo V The State (2006) 15 NWLR (pt. 1002) 227.

Counsel submitted that from the facts elicited in evidence it is clear that the deceased was the first to attack the Appellant by giving him a matchet cut on the head and all over his body. That, when a man attacks another man with a matchet cut to the head and body, any reasonable person would definitely be under the apprehension that the attacker intended to kill or cause grievous bodily harm.

He referred to the case of R. V Igwe (supra) and continued that those who saw the accused person and the scene testified that there was evidence of a life and death struggle. He submitted that the nature of the attack on the Appellant was such that caused him to reasonably think the deceased would kill him. The testimony of the witnesses and Exhibit C confirm that the Appellant was caused grievous harm.

Learned Counsel conceded that there is no evidence of retreat by the Appellant but that the prosecution did not prove that the Appellant could retreat. Counsel submitted that all we know from the evidence is that the hut was partly collapsed. We do not know whether it had multiple exists.

In the absence of evidence from the prosecution showing that the Appellant could have retreated, said Counsel, this sub-requirement is left in the realm of conjecture. A doubt is thereby created which is usually resolved in favour of the accused.

He referred to the cases of Archibong V The State (2006) 14 NWLR (pt. 1000) 249; State V Edo (1991) 7 NWLR (pt. 201) 98 and Gabriel V The State (2010) 6 NWLR (1190) 280.

Counsel submitted that assuming without conceding that the learned trial judge is right that it was the Appellant who provoked the deceased, the reaction of the deceased led to the deadly fight. That the deceased started the deadly fight and the Appellant had to defend himself. And, that the case is an appropriate one to invoke the provision of Section 224 of the Criminal Code.

Finally on self-defence, Counsel submitted referring to the cases of Baridan V The State (1994) 1 NWLR (pt. 320) 253 at 262. R. V Oshibiyi (1961) 1 All NLR 453; R V Onyeamazu (1959) NMLR 93 that it is trite law that a successful plea of self defence leads to an acquittal.

Still on issue 1, Learned Counsel for the Appellant defines provocation by reference to the provision of Section 284 of the Criminal Code and the cases of R V Duffy (1949) 1 All ER 932; R V Afonja (1955) 15 WACA 26; Obaji V The State (1965) 1 All NLR 269; Phillip Ekpenyong V The State (1993) 5 NWLR (pt 295) 513; Alochukwu V The State (1992) 1 NWLR (pt 217) 255; Galadima V The State (2013) 3 NWLR (pt. 1333) 610 and Ahmadu Lado V The State (1996) 6 SCNJ 9.

He posited that the courts have distilled three (3) ingredients that must be present for there to be provocation. They are:
1. The act of provocation must be grave and sudden.
2. The accused must have actually and reasonably lost self control; and
3. The retaliation must be proportionate to the provocation.
Learned Counsel quoted his Lordship at page 66 of the record where he said:
“I hold that if (sic) the accused person’s act provoked the deceased leading to an attack by the deceased on the accused person, the accused person cannot complain of being provoked by the deceased”.

Counsel recapitulated on the facts of the case as accepted in the confessional statements as follows. That is undisputed that the Appellant:-
(i) Only had elementary education.
(ii) Was recently released from jail.
(iii) Was on his way back to Ikare Ekiti.
(iv) Was left at an unknown junction with only N200.00.
(v) He had trekked a distance of about 5 Km for a day without food.
(vi) He came to a farm and saw a pot of corn on fire without seeing the owner.
(vii) He took the corn and ate.
(viii) As soon as the owner of the maize came the first thing he did was to attack the Appellant with a cutlass.
(ix) The owner dealt matchet blows on the Appellant’s head and all over his body.
Counsel referred to the cases of Onwe V The State (1975) NSCC 375 and Laoye V. The State (1985) 2 NWLR (pt. 10) 832 and reminded us that the only account of what transpired is that given by the Appellant in Exhibit C and that if the story of the Appellant stands uncontradicted, then it is the facts as put forward by the Appellant that the learned trial judge had to relate the applicable law.

Learned Counsel referred to the case of Kabari Nunyiewu V The State (1972) 1 All NLR (pt. 2) 493 at 498 and submitted that in determining whether an action is provocative, the courts take into account, the station in life of the accused person.
He argued that under this sub-head, the finding of the learned trial judge that the Appellant provoked, the attack is with the greatest respect perverse. That for the Appellant to have provoked the deceased, it must be shown that the conduct of the Appellant was such as to make a reasonable man in his position to lose self control.
That, the deceased went out, came back and saw a person eating the corn he was cooking. What asked Counsel, would a reasonable man do in the circumstance? That, the normal reaction should be that of asking questions, shouting, thief, thief, thief and chasing the intruder away. If the intruder insists, he would attempt to force him out by beating him. He can also ask to be paid for the corn or request the proverbial pound of flesh.

The law, said Counsel, does not allow the deceased to kill a defenceless man, as the deceased attempted to do. He submitted that the provocation leading to murder started when the deceased dealt the matchet on the Appellant.
Learned Counsel referred to the cases of Ewo Akang V. The State (1971) 1 All NLR 48; Ahmadu Lado V. The State (1999) 6 SCNJ 1 at 9; Nwafor Uraku V. The State (1976) 6 SC 195 at 203 – 204; Vincent Chukwu V The State (1971) 1 All NLR 46 at 49; Adamu Kumo V The State (1967) 1 All NLR 309; Okon Bassev V. The Queen (1963) 1 All NLR 285; R V Jinobu (1961) All NLR 654 and James Biruwa V. The State (1992) 1 NWLR (pt. 220) 633 at 644. He submitted that from the decided cases, the acts that have been held to make a man capable of loosing self control depends on the circumstances, the background of the accused person and his station in life.

He submitted that the undisputed facts of this case is that the deceased on seeing the “corn thief” (the Appellant) immediately dealt him matchet blows on his head and body. There was no attempt from the deceased to hear from the Appellant. That, perhaps, if the deceased had heard from the Appellant the pathetic ordeal of the Appellant would have elicited sympathetic consideration from the deceased.

Counsel submitted further that the act of dealing matchet blows on a person is an obvious manifestation of an intention to kill. That, the Appellant suddenly lost self control. He reacted swiftly before there was time for passion to cool. And, that his reaction was natural and not out of vengeance or craft. He had no alternative in the circumstances.

On the proportionality rule, Counsel referred again to the decision of the Supreme Court (per Musdapher JSC) in Uwaekwe Ghinya V The State (2005) 9 NWLR (pt. 930) 227 and submitted that a very important factor in deciding proportionality is the nature of the attack. That if A attacks B with the intention of killing B, the nature of weapon used by A in retaliation to a threat of death must also be one capable of causing death. That in the instant the reaction of the Appellant would satisfy either the proportionality of weapons test and/or the proportionality of the action test.

Learned Counsel for the Respondent reiterated the ingredients of murder in relation to issue 1 and submitted that all the ingredients were fulfilled before the conviction of the Appellant in the instant case. In particular, Counsel emphasized the reliance on Exhibit C, the Appellant’s confessional statement coupled with the fact that all the surrounding circumstances rendered the content of Exhibit C to be probable and true.

Respondent’s Counsel argued that neither the provision of Section 33 (2) (a) of the constitution of the Federal Republic of Nigeria 1999 (as amended) nor those of Sections 286 and 287 of the Criminal Code on self-defence could avail the Appellant.

According to Counsel, Section 287 of the Criminal code cannot avail the Appellant because evidence was given by the Appellant himself that he was the first to attack the deceased because he thought the deceased would attack him. Also, that the position of the law is that an accused person can properly claim the defence of self defence only where he admits that he did the act which caused the death of the deceased but was justified in doing so to protect his own life and would have been killed or was in such fear when he committed the act.

He referred to the case of Ahmed V. State (2001) 2 ACLR Vol. 2 131 at 137. That in the instant case, the Appellant did not admit in his defence that he was justified in hitting the deceased in order to preserve his own life. That, based on his denial, he cannot enjoy the defence of self defence.

Leaned Counsel for the Respondent referred to the case of Kwaghshir V. State (1998) 1 NCLR 548 at 549 that the following must be established for an accused to avail himself of self-defence.
a. The accused must be free from fault in bringing about the encounter. In this case, the appellant himself provoke the deceased by eating the corn.
b. There must be present an impending peril to life or of great bodily harm. From the available facts in this case, it shows that it was the Appellant who first attacked the deceased and he also testified that the cut on his body was inflicted on him by some other persons, and not the deceased and there was no impending peril to his life. The Appellant maintained that it was not the deceased who inflicted the matchet cut on him.
c. There must be no safe reasonable mode of escape by retreat. In Exhibit C, the Appellant stated that he managed to get the axe there and used it to hit the deceased, this shows that there was ample opportunity for him to escape when he went back to pick the axe, but he did not, he picked the axe and came back to hit the deceased.
d. There must have been a necessity for taking life. The Appellant did not establish any of the above ingredients to sustain the defence of self-defence.

Learned Counsel for the Respondent submitted further that the general principle holds good that the onus is still on the prosecution to prove beyond reasonable doubt that the accused acted without self defence. However, that, the prosecution is entitled to rely on the presumption that every man has the capacity to be responsible for his crime. And, that if the defence wish to rebut that presumption, they must give some evidence from which the contrary may be reasonably inferred.

He submitted that Section 140 (1) of the Evidence Act provides that where a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from or qualification to the operation of the law creating the offence with which he is charged is upon such person. The burden of introducing reasonable evidence of self-defence has not been discharged by the defence in this case. He added that the courts are not to indulge in speculation, even though they are obliged to consider a defence raised however stupid. He referred to the case of R V Barimah (1954) 11 WACA.

Learned counsel for the Respondent also analyzed the ingredients of the defence of provocation. In considering the station in life of the Appellant, he submitted that the action of the Appellant provoked an attack not that of the deceased. That the Appellant was an intruder and that his station in life does not in any way justify the attack on the deceased.

Furthermore, according the Counsel for the Respondent, evidence from the confessional statement Exhibit C, shows that “Myself managed to get an axe”. This evidence shows that the act of inflicting the axe on the deceased was not spontaneous. That, there was still time for passion to cool. And, that passion ought to have cooled down when he said he managed to get an axe. He was still master of his mind.

Finally, on provocation, Respondent’s Counsel submitted that the retaliation by striking with an axe was not proportionate to the provocation offered by the deceased if any.

The concern of the Appellant in his issue 1 is for a re-consideration of the availability of the defences of self-defence and provocation to his case.

In this respect, it must be understood from the onset as the Appellant’s Counsel did that in the circumstances of the case we are only bound to consider possible defences open to the Appellant only through his confessional statement Exhibit C. Other statements by prosecution witnesses could indeed have put to doubt the entire content of Exhibit C especially in relation to who was the aggressor or who first attacked in between the Appellant and the deceased. However, in the circumstances of the case the content of Exhibit C is sacrosanct. This is because, the conviction of the Appellant was indeed based on his confessional statement Exhibit C and it is not right in law to admit and utilize one aspect of Exhibit C and reject another aspect. To be more specific, a court of law would not be right to act upon an inculpatory aspect of a confessional statement and jettison the exculpatory aspect of the same confessional statement.

In fact, in paragraph 3.23 at page 14 of the adopted Appellant’s brief of argument, Learned Counsel for the Appellant indeed conceded that “there is no evidence of retreat from the fight by the Appellant”.

Learned Counsel for the Respondent emphatically submitted that the Appellant stated that he managed to get the axe there and use it to hit him, this shows that there was ample opportunity for him to escape when he went to pick the axe, but he did not, he picked the axe and came back to hit it on the deceased.

The revealing extract of Exhibit C which shows that the Appellant did not make any attempt to retreat or that no such evidence was given could be seen thus:-
“— from there I trecked to Arigidi-Akoko, I treck only one day only one day to Arigidi-Akoko. At Arigidi-Akoko I was directed to farm road, instead of Iyere town I ask from people to direct me to, I treck almost five kilometer to the town. At this farm, I saw one house where they are cooking maize, on getting there I sat down and started eating the maize. Suddenly, the owner of the maize came and attacked me with cutlass in my head and every part of my body. At this stage, myself manage to get the axe there and use it to hit him from the head, the man ran inside his farm, I cannot remember the actual date now but I am the person that killed him with an axe in his farm —”
(underlined emphasis supplied). Meanwhile, our courts have given sufficient imprimatur for the existence of the common law retreat concept in self-defence under the Nigerian criminal law. For example, in The State V. Fatayi Baiyewunmi (1980) 1 NCR 183, the Supreme Court made it clear that “— it is not the law that a person threatened or attacked must take to his heals and run away; but that he must demonstrate by his actions that he did not want to fight”.
Also in the case of Sunday Baridan V. The State (1994) 1 NWLR (pt. 320) 250 at 262, the Supreme Court again speaking through Iguh JSC (as he then was) said; “He must show that he did not want to fight and that he was at all material times prepared to withdraw”.
See also, Odu V. The State (2001) 10 NWLR (pt.722) 668. Therefore, in deciding whether the force used in self defence was reasonable, all the circumstances may be considered. The matter is one of fact and not one of law, hence it cannot be ruled that a person who is attacked must retreat before retaliating. A person’s opportunity to retreat with safety is a factor to be taken into account in deciding whether his conduct was reasonable, as is his willingness to temporize or disengage himself before resorting into force.
See: R V McInnes (1971) 3 All ER 295, 55 Cr. App Rep. 551, CA.
In the instant case, there is no suggestion in the Appellant’s confessional statement Exhibit C, that he was willing to temporize or disengage himself in the fight before he hit the deceased with the axe. The defence of self could not truly avail the Appellant.

On the other hand, I do not agree with the learned trial judge that the defence of provocation would also not avail the Appellant in all the circumstances of this case.
As pointed out by both counsel in this appeal, the courts have distilled 3 ingredients to establish the defence of provocation.
(i) The act of provocation must be grave and sudden.
(ii) The accused must have actually and reasonably lost self control and
(iii) The retaliation must be proportionate to the provocation.
Clearly in this respect, I do agree with the Learned Counsel for the Appellant that if the content of Exhibit C was true, the provocation of the Appellant was grave and sudden. And, that a reasonable man in the station of the Appellant would have lost self control. Indeed a reasonable hungry corn-thief like the Appellant would nevertheless lose self control if attacked on the head and other parts of the body with a cutlass. And in all the circumstances of the case an attack with an axe cannot be said to be disproportionate to a sudden attack on the head and other parts of the body with a cutlass.
This is because, the Appellant could not be expected to weigh his retaliation with niceties when struck with a cutlass on his head and matcheted on other parts of his body by the deceased.
The learned trial judge in the instant case rejected the Appellant’s plea of provocation based on one or perhaps two related but invalid assumptions. The first is that it was the Appellant who provoked the deceased by intruding into his farm and eating from his pot of corn which by this assumption justifies the attack on the Appellant by the deceased and for which the Appellant cannot complain.

At page 66 of the record, the learned trial held as follows:
“I hold the view that the defence of provocation will not avail the accused person in this case. The accused person in Exhibit C said that when he got to the farm house he saw the maize that was being cooked on fire. He did not see the owner but he sat down and started eating the maize. When the owner i.e. deceased came, he attacked him with cutlass. He saw an axe and he dealt a blow on the head of the deceased. Assuming but not conceding the fact that the deceased attacked the accused person, it was the deceased who was provoked.
In other words, it was the accused person who intruded into the farm house and started to eat the maize of the deceased that provoked the deceased. I hold that if the accused person’s act provoked the deceased leading to an attack by the deceased on the accused person, the accused cannot complain of being provoked by the deceased”.

With respect, the above statement by the learned trial judge would seem to oversimplify the facts and circumstances of the instant case. Contrary to such a view, the facts of this case can be likened to a typical situation where evidence which was adduced in support of an unsuccessful plea of self-defence may be relied on in whole or in part as affording a defence of provocation.
See. Bullard V R (1957) AC 635 42 Cr. APP. Rep. 1 PC; R V Porrit (1961) 3 All ER 463, 45 Cr. App . Rep. 348 CCA.

This is because a person may rely on self-induced provocation where his own conduct causes a reaction in another which in turn causes him to lose his own self-control. In other words, the mere fact that the accused as the Appellant in this case caused a reaction in others (deceased) which in turn led him to lose his self-control does not result in the issue of provocation being kept outside the consideration of the jury or the judge as the case may be.
See:- R V Johnson (1989) 2 All ER 839, 89 Cr App. Rep. 148 CA; Edward v. R. (1973) AC 648, 57 Cr. APP Rep 157 PC.
In the instant case, the learned trial judge was wrong to have foreclosed the possibility of a defence of provocation merely because it was the Appellant who first provoked the deceased by eating from his pot of corn. In any event, the Appellant was sufficiently provoked by the reaction of the deceased who matcheted him (the Appellant) on the head and other parts of his body merely for coming into his hut and eating his corn.
The defence of provocation is available to the Appellant in this case.
Having come to the conclusion that the Appellant could be availed of the defence of provocation, issue 1 is resolved in favour of the Appellant.

The submission of both counsel on Issue No. 2 was a repetition of their submissions on the defences of self defence and provocation. My decision on Issue No. 1 that though the defence of self defence could not avail the Appellant, the defence of provocation indeed avails the Appellant also applies to issue 2 and it is accordingly adopted.

Issue 2 is also resolved in favour of the Appellant.

Having resolved the two (2) issues in this appeal in favour of the Appellant, the appeal is meritorious and it is accordingly allowed. The effect of a successful plea of the defence of provocation is to reduce the offence of murder to the lesser offence of manslaughter.
Thus, when as in the instant case, a person unlawfully kills another in circumstances which but for the provisions of section 318 of the criminal code would constitute murder does the act which causes death in the heat of passion caused by grave and sudden provocation and before there is time for his passion to cool down, he is guilty of manslaughter instead of murder.
Onyia V State (2006) 11 NWLR (pt. 991) 267; Ajunwa V State (1988) 4 NWLR (pt.89) 380.

Accordingly, the conviction and sentence of the Appellant for the offence of murder on the 14th day of may 2008 by the Honourable Justice P.I. Odunwo in suit No. HIK/1C/2004 is set aside.

Instead, the Appellant is hereby convicted for the offence of manslaughter and sentenced to ten (10) years imprisonment.

The period the Appellant has spent in prison custody since 14/5/2008 shall be taken into consideration in the computation of the 10 years sentence of imprisonment now imposed on the Appellant.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: The Appellant, an ex-convict by his evidence, inflicted lethal injuries that led to the death of the deceased in his own hut where he had branched in and found boiled corn in a pot and wanted to eat to wade off starvation. There was a resistance and a fight leading to Mutual injuries but death of the victim/owner of corn in his Castle/Farm and outside the thatched room where the corn was and the thatch partially destroyed.

A man is presumed to intend the natural consequences of his act; but the Appellant herein claims provocation.
It is for the Appellant that raised such a defence to show that there was no time for his passion to cool. He said he was matchetted on the head as soon as the deceased met him in the thatched room eating the stolen corn. It can therefore be inferred that his own reaction to the matchetting on the head was spontaneous and there was no time for passion to cool.

While I have no option in the circumstance to concur with my Lord, Owoade, JCA that the appeal be allowed and the conviction for Murder set aside and in its place be made/entered a conviction and sentence of 10years imprisonment for manslaughter, I think this is a situation to call on the prison authorities to truly rehabilitate prisoners by training and empowering them, such that they do not come out as extremely poor rats with no means of even transportation nor feeding.

Were it not so, Appellant would not have been relying on the defence of necessity to steal corn and to be relying on the self – induced provocation allowed under the common law!

Why did the Appellant Not use the N200 (Two Hundred Naira Only) he said was given to him for transportation to cushion his grave hunger, when he had chosen to treck home.

The Psyche of in-mates must be truly worked on by Psychologists/Psychiatrist while in prison custody so that in mates are not released as hardened or vindictive agents of destruction who may have harbored axes to grind with the system or perceived or real enemies.

The safety of society should be protected by a wholistic prison administration, while a court of law may also protect innocent victims of crime whose souls and blood cry out for Justice just as the members of the Public and the Accused in the Tripod of Justice.

Appeal allowed.

JAMES SHEHU ABIRIYI, J.C.A.: I had the privilege of reading in advance the draft of the judgment just delivered by my learned brother MOJEED ADEKUNLE OWOADE, JCA.

I agree entirely with him that the defence of provocation is available to the Appellant.

Accordingly his conviction and sentence for murder is also set aside by me. In its place, the conviction and sentence are substituted with a conviction and sentence for manslaughter punishable by ten years imprisonment which shall commence from the 14th May 2008 when the Appellant has been in prison custody.

Appearances

Uche C. Ihediwa, Esq.For Appellant

AND

Mrs. G. A. OlowoporokuFor Respondent