ABDU v. STATE
(2022)LCN/4990(SC)
In The Supreme Court
On Friday, May 13, 2022
SC.862/2015
Before Our Lordships:
Chima Centus Nweze Justice of the Supreme Court of Nigeria
Amina Adamu Augie Justice of the Supreme Court of Nigeria
Helen Moronkeji Ogunwumi juJustice of the Supreme Court of Nigeria
Adamu Jauro Justice of the Supreme Court of Nigeria
Emmanuel Akomaye Agim Justice of the Supreme Court of Nigeria
Between
SHUAIBU FULANI ABDU APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO:
WHEN FRESH ISSUE CAN BE RAISED AT THE APPELLATE COURT
A party who wishes to raise fresh issues on appeal must do so with the leave of the appellate Court and in the absence of such leave to raise and argue fresh issues on appeal, the party is foreclosed from raising grounds of appeal outside the decision being appealed against. See ONWUKA V. ONONUJU & ORS (2009) LPELR-2721 (SC); CGG (NIG) LTD V. AMINU (2015) LPELR-24463 (SC); SHAIBU V. STATE (2017) LPELR-42100 (SC); AGBITI V. NIGERIAN NAVY (2011) LPELR-2944 (SC); AWUSA V. NIGERIAN NAVY (2018) LPELR-44377 (SC). PER ADAMU JAURO, J.S.C.
WHAT CONSTITUTE THE FOUNDATION OF EVERY APPEAL
The law is trite that a ground of appeal is the foundation of every appeal as it constitutes an Appellant’s complaint against the judgment appealed against. The ground of appeal also gives information of the precise nature of an Appellant’s complaint and ensures fairness to the other side: See LAGGA V. SARHUNA (2009) ALL FWLR (PT 455) 1617 @ 1636 (S.C.). PER ADAMU JAURO, J.S.C.
WHEN A DEFENCE OF PROVOCATION WILL NOT AVAIL AN ACCUSED PERSON
A defence of provocation will not avail an accused person if there is evidence that there was a recess or a possible recess in the mind of the accused for passion to cool. Similarly, defence of provocation will not avail an accused if there is evidence of organized or premeditated vendetta.” PER ADAMU JAURO, J.S.C.
ADAMU JAURO, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal, Kaduna Division which affirmed the judgment of the Jigawa State High Court of Justice sitting at Birnin Kudu, Jigawa State. The trial Court convicted the Appellant for the offence of culpable homicide punishable with death under Section 221 (b) of the Penal Code of Jigawa State.
BRIEF STATEMENT OF FACTS
The Appellant was accused of causing the death of one Saleh Kurma by hitting him with a machet on his head and hand thereby inflicting Injuries on him which led to his death. In a bid to prove the guilt of the Appellant, the Respondent called three witnesses and tendered the confessional statements of the Appellant in Exhibits A and A1. The Respondent also tendered a medical report admitted and marked exhibit 3. In the said confessional statement, the Appellant admitted that he caused the death of the deceased on an allegation that the deceased had an illegal sexual intercourse with his wife.
The Appellant in his defence called two witnesses and denied the allegation of culpable homicide against him. In a considered judgment delivered on 29th day of March, 2012, the Appellant was found guilty, convicted and sentenced to death by hanging on the neck till he is dead. The judgment of the trial Court is at page 77-107 of the record.
Being dissatisfied, the Appellant appealed to the Court of Appeal against the said judgment vide a notice of appeal dated the 8th day of November, 2013 and filed on 11th day of November, 2013.
The Court of Appeal heard the appeal and in a considered judgment delivered on the 26th day of March, 2015, the Court below dismissed the appeal. (See pages 166-198 of the records).
In a bid to exhaust his constitutionally guaranteed right of appeal, the Appellant invoked the appellate jurisdiction of this Court via a notice of appeal dated and filed on the 23rd day of April, 2015 (See pages 199-201 of the records.)
The grounds of appeal with their particulars are hereunder reproduced as follows:
“Ground 1
That the learned Justices of the lower Court erred in law and facts when they held that the prosecution have prove (sic) a case of culpable homicide punishable under Section 221 (b) of the Laws of Jigawa State, 1998.
Particulars
1. That the prosecution did not prove the essential elements of the offence.
2. That the prosecution did not give any evidence to contradict the defence of provocation raised by the Appellant.
3. That the prosecution did not tender the case dairy (sic) of the investigation of the case.
Ground 2
That the learned Justices of the lower Court erred in law and facts when they did not consider the Appellant’s defence of provocation.
Particulars
1. The prosecution did not give evidence of the mens rea of the offence.
2. The prosecution did not give evidence to contradict the mental state of the Appellant.
Ground 3
That the Court of Appeal per ABDU ABOKI, JCA erred in law and facts when he held that:
“In the instant case the appellant did not raise any defence of provocation and there is no evidence in the record of proceeding to avail the Appellant of the defence of provocation”
Particulars
1. That provocation can be inferred from the Appellant’s statement to the police.
Ground 4
That the judgment of the lower Court delivered on the 26th day of March 2015 is against the weight of evidence.
Grounds 5
To file other grounds of appeal on receipt of the records of proceedings of the lower Court.”
In obedience to the rules and practice of this Court, parties filed and exchanged their briefs of arguments. The Appellant’s brief of argument settled by EMMANUEL ESENE ESQ. was filed on 18th January, 2016. For the determination of the appeal, counsel distilled a sole issue to wit:
“Whether from the facts and circumstance of this case, the prosecution has proved its case beyond reasonable doubt against the appellant.”
In arguing the said issue, counsel submitted that there is no eye witness to the commission of the offence. That the Appellant was convicted and sentenced to death for the offence of culpable homicide based on his confessional statement in Exhibit 1 and 1A.
It was the submission of counsel that at the stage of tendering the confessional statement, the Appellant objected to same at page 44-45 of the records to the effect that he did not make substantial part of the Hausa Version and also retracted the entire confessional statement during his defence at pages 68—72.
Counsel also submitted that the Respondent tendered a medical report from the Bar admitted as Exhibit 3 without calling any expert witness. That the said medical report tendered from the bar was not certified and no foundation was laid for its admissibility. He submitted further that the Respondent did not carry out a post mortem examination on the corpse to determine the cause of death.
It was his submission that the Respondent must prove its case beyond reasonable doubt and that the burden of proof remains with the Respondent throughout the trial and does not shift to the Appellant. Reliance was placed on OKOH VS THE STATE (2014) 8 NWLR (PART1410) 502 AT 522, THE STATE VS EMINE (1992) 7 NWLR (PT.256) 658, OGUNDIYAN VS THE STATE (1991) 3 NWLR (PT.181) 519, ALOGE VS IGP (1959) 4 FSC 203.
Counsel for the Appellant submitted that in a charge of culpable homicide punishable with death, the essential ingredients that the prosecution must prove to secure a conviction are as follows:
1. That the deceased is dead
2. ‘fhat the death of the deceased person resulted from the Acts of the accused person
3. That the Accused caused the death of the deceased intentionally or with knowledge that death or grievous bodily harm was its probable consequence.
He further submitted that the above ingredients must co-exist and where one of them is either absent or tainted with any doubt, the charge is said not to be proved. He cited the cases ofILIYASU VS THE STATE (2014) 15 NWLR (PART1 430) 245, SULE VS THE STATE (2009) 17 NWLR (PT.1169) 33, NKEBISI VS THE STATE (2010) 5 NWLR (PT.1188) 471. MBANG VS STATE (2010)7 NWLR (PT 1194) 431, USMAN VS THE STATE (2011) 3 NWLR (PT.1233) 1, SABI VS THE STATE (2011) 14 NWLR (PT.1268) 421, ULUEBEKA VS STATE (2011) 4 NWLR (PT.1237) 358.
Counsel admitted that the death of the deceased is not a fact in issue having been proved by the Respondent’s witnesses. However, counsel submitted that the Respondent did not prove the cause of death or that the Appellant caused the death of the deceased person. It was his contention that the Respondent was bound to prove that the death of the deceased resulted from the act of the Appellant by direct eye witness account, circumstantial evidence from which the guilt of the Appellant can be inferred or by free and voluntary confessional statement of guilt which is direct and positive. He relied on ILIYASU VS STATE (SUPRA) EMEKA VS STATE (2001) 14 NWLR (PT.734) 660, NIGERIAN NAVY VS. LAMBERT (2007) 18 NWLR (PT.1066) 300, DELE VS. STATE (2011) 1 NWLR (PT.1229) 508, MBANG VS THE STATE (SUPRA).
It was the submission of counsel that the only evidence relied upon by the lower Court are the confessional statements of the Appellant. That when the Respondent sought to tender same, the Appellant challenged the voluntariness of the statement and the fact that he did not make substantial part of the Hausa version of the confessional statement. That despite the objection, the trial Court failed to conduct a trial-within-trial to establish the voluntariness of the confessional statement. He contended that the failure of the trial Court to conduct a trial-within-trial amounts to a breach of fair hearing.
Counsel submitted that the trial Court ought to have examined other evidence on the record, no matter how slight outside the confessional statement that makes the confession probable. Reliance was placed on OKOH VS STATE (2014) 8 NWLR (PT.1410) 502; UDOFIA VS THE STATE (1984) 12 SC 139; OJEGELE VS THE STATE (1988) 1 NWLR (1)1.71) 414; AKPA VS THE STATE (2007) 2 NWLR (1)1.1019) 500; OLUDE VS STATE (2014) 7 NWLR (1)1.1405) 89 AT 116
Counsel submitted that the evidence of PW 1 and PW 2 who were not eye witnesses did not corroborate the Appellant’s confessional statement in any way and manner and that the confessional statement is not consistent with other facts and evidence on the record.
In respect of Exhibit 3 which is the medical report tendered from the bar by the prosecution at page 60-65 of the record, Counsel submitted that the essence of tendering the medical report or post mortem examination report was to establish the cause of death of the deceased person. That by virtue of Section 249(1) of the Criminal Procedure Code, the evidence of any medical officer or registered medical practitioner must be taken on oath. He submitted further that Exhibit 3 was not tendered through a witness on oath in accordance to Section 249(1) of the CPC. He therefore urged this Court to expunge Exhibit 3 from the record.
In furtherance to the above submission, counsel submitted that Exhibit 3 is not a post-mortem examination report on the deceased person but only stated the injuries received by the deceased and not the cause of death.
It was the contention of counsel that the Respondent did not tender the report of the post mortem examination and did not inform the Court if the post mortem examination was done on the deceased or not. That the Respondent at page 60 of the record stated that one Dr. Suleiman who conducted post-mortem examination on the corpse of the deceased could not be traced; that rather than tendering the post-mortem examination report, the Respondent only tendered the medical report where the deceased was referred for post-mortem examination to establish the cause of death. Counsel thereafter submitted that the failure of the Respondent to tender the post-mortem examination result on the deceased amounts to withholding evidence. He also urged this Court not to place any evidential value on Exhibit 3 because the maker as an expert was not subjected to any cross-examination regarding his competence to author the medical report.
In the alternative, counsel submitted that the Appellant raised a defence of provocation. That the deceased was said to have forcefully had sexual intercourse with the Appellant’s wife which necessitated the Appellant taking a cutlass to the home of the deceased to attack him. Counsel submitted further that when the Appellant attacked the deceased person, he did not intend to kill the deceased person. That the Appellant was provoked by the behavior/conduct of the deceased person.
It was the submission of counsel that provocation is an act or series of acts which could cause a reasonable person to sudden and temporary loss of self-control rendering him vulnerable or susceptible to passion so much so that he is no longer the master of his mind. Reliance was placed on SHANDE VS STATE (2005) 12 NWLR (PT.939) 301, UWAEKWEGHINYA VS STATE (2005) 9 NWLR (PT.930) 227, MUSA VS STATE (2009) 15 NWLR (PT.1165) 467.
Counsel submitted that for a defence of provocation to avail the Appellant, the following element must exist.
1. That the act of provocation must be grave and sudden.
2. The loss of self-control, both actual and reasonable.
3. The retaliation proportionate to the provocation.
He cited the cases of BIRUWA VS STATE (1992) 1 NWLR (PT.220) 633; NJOKWU VS STATE (2014) 9 NWLR (PT.1360) 417 AT 440.
Counsel submitted further that the Appellant is an illiterate and on hearing that the deceased forcefully had sexual intercourse with his wife, he was provoked hence making the conduct of the deceased grave and sudden. That the deceased forcefully having sex with the Appellant’s wife was a serious matter that could make a reasonable man lose control of himself. Counsel submitted that the conduct of the deceased continuously caused provocation to the Appellant until he met the deceased when he used cutlass on the deceased person.
In the final analysis, counsel urged this Court to uphold the defence of provocation and reduce the charge to manslaughter.
DR. MUSA ADAMU ALIYU, the Hon. Attorney General of Jigawa State settled the Respondent’s brief of argument filed on 28th January, 2021.
For the determination of the appeal, the Honourable Attorney General formulated a sole ground to wit:
“Whether or not considering the evidence adduced before the trial Court, the learned Justices of the lower Court were right in dismissing the appeal of the Appellant and affirming the judgment of the trial Court in suit No. JDU/32/C/2010 convicting the Appellant for the offence of culpable homicide punishable with death and sentenced him accordingly.”
In arguing the sole issue, counsel for the Respondent submitted that for the prosecution to succeed in proving the offence of culpable homicide punishable with death under Section 221 (b) of the Penal Code, it must prove the essential ingredients of the offence beyond reasonable doubt. He cited the cases of MUSA V. STATE (2009) 7 NWLR (PT. 1165) PAGE 67, STATE V. JOHN (2013) 1 NWLR (PT. 1368) P. 337
Counsel submitted that the Respondent proved the death of the deceased beyond reasonable doubt. That on the second ingredient, the Respondent proved it with the evidence of PW 3 and Exhibit IA wherein the Appellant categorically and explicitly in his extra-judicial confessional statement stated the way and manner his act of inflicting injuries on the deceased’s hand and shoulder which resulted in his death.
Counsel submitted that, a confessional statement which is direct positive and voluntarily made can be used in convicting the accused person without even other corroborative evidence. Reliance was placed EMEKA V. STATE (2001) 5 MISE AT PAGE 62 PARAS A-B.
On the failure of the trial Court to conduct a trial-within-trial, counsel for the Respondent submitted that the mode of objection raised by the Appellant with respect to the tendering of Exhibit 1 and 1A does not call for a trial-within-trial. That the objection was not predicated on involuntariness of the confession but that the confessional statement was made without word of caution.
It was the submission of counsel that assuming but without conceding that trial Court ought to have ordered for trial-within-trial, the failure of the trial Court in that regard was just an irregular procedure followed by the Court in determining the voluntariness or otherwise of the statement.
He argued that it is the law that where a Court adopted an irregular procedure and the accused did not complain of it, the accused cannot be heard to complain of same on appeal unless the irregular procedure led to miscarriage of justice. Reliance was placed on UWAEKWEGHINYA v. STATE (2005) (Supra). Counsel submitted that since there was no miscarriage of justice shown by the Appellant, he cannot be heard to complain on appeal of the procedure.
Counsel also submitted that there is no ground of appeal which specifically complains about the admissibility of the confessional statement and the medical report in Exhibit 3. That the sole issue formulated by the Appellant supported the argument on the inadmissibility of the confessional statement. Relying on AIGBADION v. STATE (1998) LPELR-5246(CA), counsel for the Respondent submitted that no party can be allowed to make argument not related to the grounds of appeal.
On whether the defence of provocation would avail the Appellant, counsel for the Respondent argued that it is trite law that, for the plea or defence of provocation to avail an accused person, the act complained of must occur on the spur of the moment and before there was a time for passion to cool down. Reliance was placed on EDOHO V. STATE (2010) 14 NWLR (part 1214) 651 at 683, paras A-C.
It was the contention of counsel that the defence of provocation would not avail the Appellant because in exhibit A and A1, he unequivocally stated the way and manner he inflicted injuries on the deceased. That it was not an attack on the spur of any moment on provocation.
Counsel submitted that merely because the Appellant was angry with the deceased for suspecting him to be having an affair with his wife was not enough provocation to warrant killing the deceased. Counsel submitted that mere anger does not itself qualify as provocation in law. The case of EDOHO V. STATE (supra) was cited in support.
In the final analysis, counsel urged the Court to hold that the Appellant failed woefully to back up his defence of provocation with credible evidence.
RESOLUTION
In the course of resolving the issues in this appeal, I will start by addressing two issues raised by the Appellant. Firstly, the Appellant made heavy weather on the failure of the trial Court to conduct a trial-within-trial to ascertain the voluntariness of his confessional statements in Exhibits A and A1. Secondly, the Appellant contended the admissibility of the medical report admitted and marked Exhibit 3, having been tendered from the bar and the expert not called as a witness. It is imperative to state that these weighty allegations which are capable of casting serious doubts on the guilt of the Appellant if proved, were not raised in the Court below. Furthermore, they are not covered by the grounds of appeal which have been reproduced earlier in this judgment. By the provisions of Section 233 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), this Court in its appellate jurisdiction only hear appeals from the Court of Appeal. It is therefore, an elementary principle of law that every ground of appeal must attack the ratio decidendi of the decision being appealed against. See K.R.K. HOLDINGS (NIG) LTD. V. FBN (2016) LPELR-41463 (SC); GTB V. INNOSON NIGERIA LTD (2017) LPELR-42368 (SC); YUSUF & ANOR V. STATE (2019) LPELR-46945 (SC)
A party who wishes to raise fresh issues on appeal must do so with the leave of the appellate Court and in the absence of such leave to raise and argue fresh issues on appeal, the party is foreclosed from raising grounds of appeal outside the decision being appealed against. See ONWUKA V. ONONUJU & ORS (2009) LPELR-2721 (SC); CGG (NIG) LTD V. AMINU (2015) LPELR-24463 (SC); SHAIBU V. STATE (2017) LPELR-42100 (SC); AGBITI V. NIGERIAN NAVY (2011) LPELR-2944 (SC); AWUSA V. NIGERIAN NAVY (2018) LPELR-44377 (SC).
In the instant appeal, the Appellant’s counsel surreptitiously raised the issues of involuntariness of the Appellant’s confession and the failure of the trial Court to conduct a trial-within-trial.
Counsel also raised objections regarding the admissibility of the medical report in Exhibit 3 which was tendered from the bar. The said issues surreptitiously raised have no rooting in the decision of the Court below. It therefore suffices to state that this Court cannot entertain the complaints of the Appellant regarding the confessional statement and the admissibility of the medical report in Exhibit 3 because this Court does not hear appeals from the decisions of the trial Court. See Section 233 of the Constitution (supra).
It is instructive to note that although the Appellant filed 19 grounds of appeal in his notice of appeal to the Court below, (see pages 15—26 of the record of appeal), the Appellant in its brief of argument at the Court of Appeal only distilled a sole issue from the 19 grounds and in arguing the sole issue, the Appellant only predicated all his arguments and submissions on why the defence of provocation ought to have availed the Appellant.
The Court of Appeal in its decision contained at pages 166—197 of the record of appeal held that from the circumstances of the case at hand, the defence of provocation was not opened to the Appellant.
All the issues regarding the admissibility of the confessional statement and the medical report were not raised in the Court below and not borne out of the judgment of the Court. In the absence of leave to raise fresh issues in this Court, the Appellant is precluded from raising such issues or submission relating thereto in his brief of argument.
The law is trite that a ground of appeal is the foundation of every appeal as it constitutes an Appellant’s complaint against the judgment appealed against. The ground of appeal also gives information of the precise nature of an Appellant’s complaint and ensures fairness to the other side: See LAGGA V. SARHUNA (2009) ALL FWLR (PT 455) 1617 @ 1636 (S.C.).
In a nutshell, all I have been saying is that the submission of the Appellant’s counsel on failure of the trial Court to conduct a trial-within-trial and the reception of evidence i.e. exhibits A, A1 and 3 is not well-founded. All the submissions and arguments of the Appellant in this regard are therefore discountenanced.
Having discountenanced the submission on the wrongful reception of evidence, the determination of this appeal has been set on a narrow compass to wit: whether the defence of provocation would avail the Appellant?
To raise the defence of provocation, what the Appellant is invariably saying is that he killed the deceased but that the act was carried out because he was provoked by the act of the deceased. The defence of provocation if properly established has the effect of mitigating the crime of murder to manslaughter but does not exculpate. See MUSA V. STATE (2009) LPELR-1930 (SC); ULUEBEKA V. STATE (2000) LPELR-3354 (SC); NJOKWU V. STATE (2013) LPELR-19890 (SC).
For a plea of provocation to avail an accused person, the burden is on him to establish:
1. That the act of provocation was grave and sudden.
2. He must have been deprived of the power of self-control and;
3. The mode of resentment degree or extent of retaliation must bear a reasonable relationship or be proportionate to the provocation offered.
The burden is discharged on a balance of probabilities and not on proof beyond reasonable doubt. See GALADIMA V. STATE (2012) LPELR-15530 (SC); MUHAMMAD V. STATE (2017) LPELR-42098 (SC)
In his confessional statement, the Appellant stated as follows:
“I could remember sometimes this year 2009, my wife Balki coming Dadjo whom they were leaving the same village and told him to go and warned Sale kurma and Amoloke to stop chasing my wife Balki. From there sometimes one named Iliyasu ward head of Gonsi ward in Kayal Bode village organized a traditional play of his daughter where Sale kurma went and told to one named Shada of Gadada village area of Gwaram L. G.A that he attack my wife Balki and had sexual intercourse with her and shadari come and inform me of what sale Kurma told him and also during Sale was telling to Shadari saw them because myself I attended that traditional play. From there on 5/10/2009at about 2100hrs I took my cutlass and went to Sale Kurma by entering his room Sale kurma wakeup I cut him on his shoulder and hand with the cutlass I am holding and left there unconscious and went back home and hide the cutlass nearby our house inside corn stalk. From there the following day 6-10-2009 1 heard that sale whom I cut him with cutlass died at F.M.C B/ kudu.’
From the narrative above, it is evident that the Appellant did not meet the deceased having sexual intercourse with his wife. The Appellant killed the deceased because of the information he received from a third party. Considering the fact that the information was received from a third party and the Appellant had to go to where the deceased was a day after he got wind of the information, then it cannot be said that the act of the Appellant was carried out in the heat of passion.
This Court, per Tobi, JSC in the case of KAZA V. STATE (2008) LPELR—1683 SC considered when the defence of provocation would be sustainable and held as follows:
“A defence of provocation will not avail an accused person if there is evidence that there was a recess or a possible recess in the mind of the accused for passion to cool. Similarly, defence of provocation will not avail an accused if there is evidence of organized or premeditated vendetta.”
In its evaluation of the defence of provocation raised by the Appellant, the Court below held at page 188 of the record of appeal that:
“From the above statement it must have taken sometime in between after Shadai told the appellant what the deceased told him on 5—10—2009 to the next day when the appellant stabbed the deceased. In the interval should the power of self-control have eluded the appellant even if what he was told was enough to provoke him? I do not think so.”
The Court below cannot be faulted in its evaluation of the defence of provocation raised by the Appellant. The Court rightly applied the law to the facts and came to an Irresistible conclusion that defence of provocation was not available to the Appellant.
A man goes to bed after having been told that another man had sexual intercourse with his wife, had a sound sleep and the following day, he took a cutlass and butchered the man said to be having sexual intercourse with his wife. This is clearly a case of premeditated and organized homicide. The Appellant had all the night to plan his revenge. He must have thought that a cutlass was the best weapon to use and what time was best to strike. The defence of provocation is demolished at this point. It would have been a different scenario if the Appellant caught the deceased having sexual intercourse with his wife or immediately upon completion of the act, and he struck in the heat of passion. On the whole, the Appellant has failed to demonstrate that the decisions of the two lower Courts were perverse to enable this Court disturb the concurrent findings in this appeal. On the contrary, the decisions of the two lower Courts are rooted in evidence and proper application of law.
In conclusion, I hold that this appeal is unmeritorious and same is hereby dismissed. The conviction of the Appellant for the offence of culpable homicide punishable with death and the sentence of death imposed on him by the trial Court which was affirmed by the lower Court is hereby further affirmed.
CHIMA CENTUS NWEZE, J.S.C.: I had the advantage of reading the draft of the leading judgment which my Lord, Adamu Jauro, JSC, just delivered. I, entirely, agree with His Lordship that this appeal is unmeritorious and should be dismissed. This contribution shall only address the main question for determination as highlighted in the leading judgement, i.e. whether the defence of provocation would avail the appellant?
Provocation is a special defence which carries with it the idea of physical aggression or some assault which suddenly arouses heat and passion in the person assaulted, Black’s Law Dictionary (1979) 5th Edition, 1103.
As set out by Code provisions, a defendant who wishes to avail himself of this special defence, must prove three conjunctive elements. These Trinitarian elements are as follows:
(a). The fact of provocation must be grave and sudden;
(b). The loss of self-control, actual and reasonable; and
(c). A retaliation proportionate to the provocation offered by the deceased to the accused; that is, the mode of resentment must bear a reasonable relationship to the provocation.
Section 38 of Penal Code; Uluebeka v. State (2000) 7 NWLR (pt. 665) 404; Ahmed v. State (1999) 7 NWLR (pt. 612) 641; Shalla v. State (2007) 18 NWLR (pt. 1066) 240; Dada v. State (2019) 3 NWLR (pt. 1659) 305;
In a word, the provocative act must be such that would deprive him of self-control, that is, at that interval, he must no longer be the master of his mind. Above all, the act of the defendant must be proportionate to the provocation.
The appellant’s confessional statement is briefly outlined below:
“I could remember sometimes this year 2009, my wife Nalki coming Dadjo, who they were leaving in the same village and told him to go and warn Sale Kurma and Amoloke to stop chasing my wife Balki. From there sometimes, one named Iliyasu ward head of Gonsi ward in Kayall Bode village organized a traditional play of his daughter where Sale Kurma went and told to one named Shada of Gadada Village area of Gwaram L.G.A that he attacked my wife Balki and had sexual intercourse with her and Shadari come and inform me of what Sale Kurma told him and also Sale was telling to Shadari saw them because myself I attended that traditional play. From there on 5th October, 2009, at about 2100 Hrs, I took my cutlass and went to Sale Kurma by entering his room Sale Kurma wake up. I cut him on his shoulder and hand with the cutlass I am holding and left there unconscious and went back home and hide the cutlass nearby our house inside corn stalk. From there, the following day 6th October, 2009 I heard that Sale Kurma whom I cut with cutlass died at F.C.M.B/Kudu.”
The picture presented from the above narrative shows that the three elements necessary for provocation to avail the appellant were not satisfied. It is apparent from his confessional statement that there was a premeditated vendetta by the appellant against the deceased person. This was because the appellant had previously warned the deceased person to stay away from his wife, Balki.
The nature of the act of provocation was hearsay. It was brought to appellant’s notice by a third party. There was absence of heat of passion. What is more, time had elapsed between the time when the appellant received the purported provocative information and the act which caused the death. Finally, there was, also, the issue of the appellant’s state of mind
In the instant case, both the trial Court and lower Court had dutifully considered whether the defence of provocation could avail the appellant in any way. Both Courts took the view that the said defence was unavailing. Like the leading judgment, I must also dismiss the appeal.
AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead judgment just delivered by my learned brother, Jauro, JSC, and I agree with him that this appeal is totally bereft of any merit.
He addressed the issue at stake in this appeal squarely and decisively, and I wholly adopt his reasoning and conclusion. However, I wish to say a few words on provocation to emphasize the point he made in the lead judgment. To start with, it is an elementary principle that a plea of provocation does not exculpate the Accused Person, but is only a mitigating factor when it comes to sentencing, and as this Court held in Edoho V. State (2010) 4 SCNJ 100 and Uwagboe V. State (2008) 4 SC 67, for provocation to constitute a defence, it must consist of three elements, which must co-exist, and they are as follows:
(a) The act of provocation was done in the heat of passion.
(b) The loss of self-control both actual and reasonable; that is to say, the act was done before there was any time for cooling down, and
(C) The retaliation is propoftionate to the provocation.
See also Kaza V. State (2008) LPELR-1683(SC) wherein Tobi, JSC, observed.
“Provocation is an action or conduct, which arises suddenly in the heat of anger. Such action or conduct is precipitated by resentment, rage, or fury on the part of the Accused Person to the person that offered the provocation. Because of the anger, resentment, rage or fury, the Accused Person suddenly and temporarily loses his passion and self-control; a state of mind, which results in the commission of the offence. There can hardly be provocation in respect of words or acts spoken or done in the absence of the Accused. This is because words spoken or acts done in the absence of the Accused will not precipitate any sudden anger, resentment, rage, or fury, as there is time for passions to cool. The very act of repottage of the words or acts of the Accused should materially reduce or drown the anger, resentment, rage, or fury of the Accused.”
The test is whether a reasonable man in the street or status of the Accused would have been provoked to commit the offence – see Kaza V. State (supra), Shalla V. State (2007) 18 NWLR (Pt. 1066) 240 SC, and Owhoruke V. COP (2015) LPELR-24820(SC), wherein Rhodes-Vivour, JSC, also explained that –
“There is no set standard of retaliation expected from a reasonable man; it all depends on the Appellant’s station in life. A reasonable man is a reasonable man of the Accused Person’s standing in life and to a large extent, his cultural background.”
In this case, it was argued that the Appellant is an illiterate, who heard that the deceased forcefully had sexual intercourse with his wife, which could make a reasonable man lose control of himself. But he did not attack the deceased on the spur of the moment. He was told by a third party that the deceased had sexual intercourse with his wife the day before, and there was enough time for his passions to cool before he went to where the deceased was and killed him, therefore, in the circumstances of this case, the said defence cannot avail him.
I also dismiss this appeal and affirm the decision of the Court of Appeal.
HELEN MORONKEJI OGUNWUMIJU, J.S.C.: I have read before now, the judgment just delivered by my learned brother ADAMU JAURO, JSC. I agree with his Lordship’s reasoning and conclusion that this appeal is unmeritorious.
This is an appeal against the judgment of the Court of Appeal (the lower Court) Kaduna Division Coram: Uwani Abba Aji (JCA) (as he then was) Abdu Aboki (JCA) (as he then was) and Habeeb A.O. Abiru JCA delivered its judgment on the 26th day of March, 2015 wherein the Court below affirmed the judgment of the trial Court sitting in Jigawa State delivered on the 29th day of March, 2012, sentencing the Appellant to death by hanging.
Dissatisfied with the judgment, the Appellant appealed to the Court below. After due consideration of the appeal, the Court below dismissed the appeal.
Aggrieved by that judgment, the Appellant appealed to this Court vide a Notice of Appeal dated and filed on the 23rd day of April, 2015.
The facts that led to this appeal are as follows:
The Appellant was charged with the offence of culpable homicide punishable with death under Section 221(b) of the Penal Code, Cap 107 Laws of Jigawa State of Nigeria, 1998. He was alleged to have killed one Sale Kurma with a machete on the 16th day of March, 2010 at Farin Village, Gwaram Local Government Area, Jigawa State.
At the trial, the prosecution in proving its case, called three (3) witnesses PW1 was Iliyasu Abdu who was the Mai Unguwa of the deceased and took him to the hospital. He stated as follows on page 36-37 of the record.
“when I came to Sale’s house and find that he was stabbed at 3 places on the head, hand and shoulder. He was alive. I got a vehicle and conveyed him to hospital at B/kudu, the Federal Medical Centre. The wounds were stitched, but by around 8: am he died.”
PW2 one Abdu Saidu testified with regard to the treatment of the deceased and his death at the hospital.
PW3 Cpl. Muhd Musa was the Investigating Police Officer of the case at the State Criminal Investigation Department (CID), who tendered the extra-judicial confessional statement of the Appellant as Exhibit 1 and 1A. The said confessional statement was admitted after a trial within trial was conducted. The Appellant in his extra-judicial confessional statements which was admitted and marked as exhibit 1 and 1A, confessed to inflicting injuries on the deceased with a cutlass on the hand and shoulder and it was the said injuries that ultimately led to the death of the deceased.
In the English translation of the Appellant’s statement in Exh A which is Exhibit No. 1A, the appellant stated inter-alia thus:
“At about 21hrs I took my cutlass and went to Sale Kurma’s house by entering his room (sic) Sale Kurma wake up I cut him on his shoulder and hand with the cutlass I am holding and left him there unconscious and went back home and hide the cutlass nearby our house inside corn stock.”
The Appellant’s defence is that he was provoked by the acts of the deceased. The Court of Appeal resolved the lone issue in favour of the Respondent and held that in the circumstances of this case there is no merit in the appeal as the defence of provocation did not avail the Appellant.
The Appellant has further appealed against the decision of the Court below to this Court vide a notice of appeal dated 23rd of April, 2015 seeking the reversal of the concurrent decisions of the Court below and the trial Court. The Appellant settled a lone issue for determination by this Court to wit:
Whether from the facts and circumstances of this case, the prosecution has proved its case beyond reasonable doubt against the appellant.
A similar somewhat wordier issue was settled by the Respondent. The Appellant’s issue is direct enough to explain the grievance of the Appellant against the judgment of the Court below.
Learned Appellant’s Counsel submitted that the Appellant rightly raised the defence of provocation since the deceased was said to have forcefully had sexual intercourse with the Appellant’s wife which was why the Appellant took a cutlass to the home of the deceased and attacked him. He further submitted that the Appellant was provoked by the behavior and conduct of the deceased but never intended to kill the deceased and that the trial Court and Court of Appeal should have convicted the Appellant of the lesser offence of culpable homicide not punishable with death.
My Lords, in raising the defence of provocation, what the Appellant urges is that he killed the deceased but that the act was done because he was provoked by the act of the deceased. Where this is properly established it has the effect of mitigating the crime of murder to manslaughter, but cannot exonerate the Appellant. MUSA V. STATE (2009) LPELR-1930 (SC), Uluebeka v. State (2000) 7 NWLR Pt. 665 Pg. 401; Nwide v. State (1985) 3 NWLR Pt. 12 Pg. 444; Yusufu v State (1988) 4 NWLR Pt. 86 Pg. 96.
From a long line of cases, it has been settled that:
(a) The act relied upon by the accused must be obviously provocative.
(b) The provocative act must be one that can and did deprive the accused of self-control.
(c) The provocative act must have emanated from the deceased.
(d) The accused must have reacted to the deceased’s act without allowing his passion to cool.
(e) The force used by the accused in retaliating must not be disproportionate to the act reacted against.
In ABDU v. STATE (2016) LPELR-41461 (SC) Pg. 14, Paras. C-E this Court-Per SANUSI, JSC held that:
“The defence of provocation would not be available to an accused person who acted with calculation and was no longer in the heat of passion even though there was a provocative incident which angered him at first. See Frank Uwagboe v. The State (2008) 12 NWLR (Pt.1102) 621; Nwede v. State (1985) 3 NWLR (Pt.13) 444; Akalezi v. State (1993) 3 NWLR (Pt.273) 1; Okonji v. State (1987) 1 NWLR (Pt.52) 659.”
My Lords, it is glaring from the facts of this case, that the defence of provocation must fail. The Appellant who claims to have been provoked when told that another man had sexual intercourse with his wife, did nothing about it, went to bed, had a sound sleep and the next day took a cutlass and butchered the man said to have had sexual intercourse with his wife cannot turn around and raise the defence of provocation. It is obvious from the evidence of the Appellant that there was enough time for passion to cool in the mind of the Appellant. See ABDU v. STATE (Supra). There is evidence of an organized and premeditated vendetta in the Appellant’s attack on the deceased who was defenceless and asleep when he was attacked and killed by the Appellant. There is no reason to upset the concurrent findings of fact of the two (2) lower Courts.
I agree with the erudite reasoning in the lead judgment that this appeal is unmeritorious and same is hereby dismissed.
EMMANUEL AKOMAYE AGIM, J.S.C.: I had a preview of the judgment of my learned brother, Lord Justice, ADAMU JAURO, JSC. I agree with the reasoning, conclusions, decisions, including the orders therein.
Appearances:
E.I ESENE, ESQ. with him, JOHNSON AHURUONYE, ESQ. For Appellant(s)
DR. MUSA ADAMU ALIYU (The Hon. Attorney General of Jigawa State) with him, MOHAMMED EL- USMAN, ESQ. (Chief State Counsel) and OBIABU FRANCIS AMEDU, ESQ. For Respondent(s)
